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THE DOCTRINE OF NON-SUABILITY OF 
THE STATE IN THE UNITED STATES 



THE DOCTRINE OF NON-SUABILITY OF 
THE STATE IN THE UNITED STATES 



BY 

KARL SINGEWALD 



A DISSERTATION 

Submitted to the Board of University Studies of Thie Johns 

Hopkins University in conformity with the requirements 

for the degree of Doctor of Philosophy 

1910 



BALTIMORE 

1910 



-,<!>' 



Copyright 1910 by 
THE JOHNS HOPKINS PRESS 

SEP - ° \Sm 



Press of 

The new Era printing Company 

lancaster. pa. 



PREFACE. 



This paper is a study of the questions of public law 
involved in the doctrine of immunity of the state from suit, 
and especially of the relation of this doctrine to suits against 
public officers. It does not include a consideration of the 
extent to which suits against themselves are allowed by the 
United States and by the several States, nor of the prin- 
ciples of law governing cases brought under such per- 
mission. The determination of the philosophical basis of 
the responsibility of the state, also, does not fall within the 
scope of this paper. 

The study is based mainly on the cases decided by the 
supreme court of the United States, both because of the 
greater importance of those cases, and because the supreme 
court is the only tribunal before which has come any con- 
siderable number or variety of suits of this class. If the 
criticism of some of the decisions seems too free, I trust it 
will be pardoned; for it is not inconsistent with the most 
profound respect for the court. 

For convenience, the use of the word state in the generic 
sense, and the use of the word State as applied to the States 
of the United States, will be distinguished by capitalizing 
the latter. Wherever the term supreme court is used with- 
out other designation, reference is had to the supreme 
court of the United States. 

I gladly embrace this opportunity of expressing my 
grateful obligation to Professor Willoughby, head of the 
department of political science at the Johns Hopkins Uni- 
versity. It is to his broad grasp and clear exposition of 
constitutional law that I owe my great interest in the 
subject. K, S. 

June, 1910. 



TABLE OF CONTENTS. 



PART I. 

Suits against the State. 

CHAP. I. The General Doctrine 9 

Its foundation 9 

In international law 12 

CHAP. II. The Doctrine in the United States. Under 

THE Federal Constitution 15 

CHAP. III. Principles of the Constitution of the United 

States Governing Suits against States 27 

The eleventh amendment and suits between States 27 

Consent of State and jurisdiction of federal courts 29 

Restriction of consent to State courts 35 

Withdrawal of consent and impairment of the obligation 

of contracts 3^ 

CHAP. IV. Scope of the Doctrine of Non-suability — Forms 

OF Action 38 

Actions that are suits against the state 38 

Actions that are not suits against the state 42 

PART II. 

Suits against Public Officers. 

CHAP. I. The Principle of Liability in Tort 45 

CHAP. II. Injunction against Tort 47 

CHAP. III. Recovery of Property in the Possession of 

Public Officers 54 

CHAP. IV. Mandamus and Analogous Remedy in Equity. 67 
CHAP. V. Extension of the Principle of Equitable Re- 
lief against Wrongful Acts i 

CHAP. VI. Ex Parte Young 9° 

CHAP. VII. Federal Question — when Involved in Suits 

AGAINST State Officers 105 

CHAP. VIII. The Relation of the State to Suits against 

its Officers "J 



TABLE OF CASES. 



Adams, 111. Cent. R. R. Co. v., 

3i> 115 
Alabama, Postal Tel. Co. v., 17, 

29, 33, 115 
Alabama, So. & No. Ala. R. R. 

Co. v., 31, 36 
Alexander, Buchanan v., 38 
Alsbrook, R. R. Co. v., no 
Ames, Smyth v., 30, 91, 94 seq., 

115 
Antoni v. Greenhow, 36, 76, 78, 

79 
Arbuckle v. Blackburn, 108 
Arkansas, Beers v., 31, 36, 44 
Arkansas, Curran v., 31 
Arkansas, Pres. & Dir. etc. v., 43 
Atl. & N. C. R. R. Co., Christian 

v., 40, 59 
Atl. Coast Line R. R. Co., Gunter 

v., 34, 41, 49, 89, 94, loi, 102 
Atl. Coast Line R. R. Co., Pren- 

tis v., 103 
Avery, Humbird v., 85 
Avers, ex parte, 37, 77, 78, 81, 83, 

87, 96 seq., 116 
Bank of U. S. v. Planters' Bank 

of Ga., 42 
Bank, Osborn v., 21, 47 seq., 54> 

57, 60. 81, 83, III, 117 
Barnard, Clark v., 32 
Barney v. New York, 95, 106 seq. 
Barrow, Shield v., 40 
Beers v. Arkansas, 31, 36, 44 
Belknap v. Schild, 50 seq., iir, 

117 
Blackburn, Arbuckle v., 108 
Board of Liq. v. McComb, 67, 69 

seq., 88 
Bouldin v. State, 44 
Briggs v. Light-boats, 10, 38 
Brown v. Hitchcock, 85 
Brown v. Huger, 62 
Bruce, Intern'l Postal Supply Co. 

v.. 52 
Buchanan v. Alexander, 38 
Budd v. Houston, 86 



Burke, State ex rel. Hart v., 74, 

75 
Burke, State ex rel. Newman v., 

Carr v. U. S., 16, 44, 62, 64, 112 
Carpenter, State B'd. of Land 

Com'rs. v., 84 
Case V. Terrell, 40, 44 
Chandler v. Dix, 36, 65, 89, 114 
Cherokee Nation v. Ga., 17 
Chisholm v. Ga., 15 seq. 
Christian v. Atl. & N. C. R. R. 

Co., 40, 59 
Civil Rights Cases, 108 
Clark v. Barnard, 32 
Clemson Agr. College, Hopkins 

v., 53 
Cohens v. Va., 16, 21, 42 
Colorado, Kansas v., 11 
Cotting v. Godard, 94, 115 
Grain, General Oil Co. v., 32, 108 

seq. 
Crittenden, Rolston v., 68, 76 
Cunningham v. M. & B. R. R. 
Co., 40, 51, 57. 65, 68, 72, 79, 81, 
112, 113 
Curran v. Arkansas, 31 
Dashiell v. Grosvenor, 52 
Davis V. Gray, 77, 81, 82 seq., 112 
Davis & F. Mfg. Co. v. Los 

Angeles, 94, 95, 100 
Debs, In re, 41 
De Groot v. U. S., 44 
Dennison, Ky. v., 20 
Dietzsch v. Huidekoper, 93 
Dix, Chandler v., 36. 65, 89, 114 
Dockery, Mo. v., 108 
Dodge v. Woolsey, 49 
Eckford's Ex'trs, U. S. v., 43 
Ex parte Ayers, 37, 77, 78, 81, 83, 

87, 96 seq., 116 
Ex parte Virginia, 107 
Ex parte Young, 24, 31, 52, 90 

seq., 105, 116, 117 
Fargo V. Hart, 87, 108 



VI 



Table of Cases. 



Farmers' Loan & Trust Co., 

Reagan v., 30, 41, 94 seq., 108 
Ferguson v. Ross, 42 
Fitts V. McGhee, 95, 96 seq., 103 
Florida v. Ga., 20, 25, in 
General Oil Co. v. Grain, 32, 108 

seq. 
Georgia, Cherokee Nation v., 17 
Georgia, Chisholm v., 15 seq. 
Georgia, Fla. v., 20, 25 
Georgia v. Stanton, 82 
Georgia v. Tenn. Copper Co., 24 
Gibson, Weyler v., 65 
Godard, Cotting v., 94, 115 
Governor of Ga. v. Madrazo, 23, 

54, 112 
Gratiot v. U. S., 43 
Gray, Davis v., yy, 8r, 82 seq., 

112 
Grayson v. Va., 20 
Greenhowr, Antoni v., 36, 76, y^, 

79 
Greenhow, Poindexter v., 22, 36, 

49, 54. 112 
Grisar v. McDowell, 62 
Grosvenor, Dashiell v., 52 
Gunter v. Atl. Coast Line R. R. 

Co., 34, 41, 49, 89, 94, loi, 102 
Guthrie, U. S. v., y^, 
Hagood V. Southern, 51, 78, 80 
Hall V. Wise, 31 
Hammond, Mich. State Bank v., 

58,65 
Hans V. La., 18, 22 
Hart, Fargo v., 87, 108 
Hill V. U. S., 44 
Hitchcock, Brown v., 85 
Hitchcock, Minn, v., 29, 41, 85, 

Hitchcock, Neganab v., 87 

Hitchcock, Oregon v., 85 

Hollingsworth v. Va., 19 

Hopkins v. Clemson Agric. Col- 
lege, 53 

Houston, Budd v., 86 

Huger, Brown v., 62 

Huidekoper, Dietzsch v., 93 

Humbird v. Avery, 85 

Humphrey v. Pegues, 34, 41 

Hunter v. Wood, loi 

Illinois Central R. R. Co. v. 
Adams, 31, 115 

Illinois Central R. R. Co., Miss. 
R. R. Com'n v., 93 



Illinois, Missouri v., 11 

In re Debs, 41 

In re Tyler, 50, 87 

Intercolonial Railway, Mason v., 

International Postal Supply Co. 

V. Bruce, 52 
Jackson, Wilcox v., 61 
Johnson, Miss, v., 82 
Jumel, La. v., Z7, 5i, 57, 68, 69 

seq., 87, 112, 117 
Kansas v. Colorado, 11 
Kansas v. U. S., 26 
Kawanakoa v. Polybank, 10, 21 
Kentucky v. Dennison, 20 
Klein, U. S. v., 44 
Jackson, Wilcox v., 61 
Lee, U. S. v., 10, 22, 44, 51, 56, 

59 seq., Ill, 112, 114, 117 
Lightboats, Briggs v., 10, 38 
Lord, Salem Flouring Mills Co. 

v., S3 
Los Angeles, D. & F. Mfg. Co. 

v., 94, 95, 100 
Louisiana, Hans v., 18, 22 
Louisiana v. Jumel, 2>7, 5i, 57, 68; 

69 seq., 87, 112, 117 
Louisiana, N. H. v., 23, 27, 113 
Louisiana v. Steele, 80 
Louisiana v. Texas, 108 
Lowry v. Thompson, 59, 115 
McClung, Meigs v., 61 
McComb, Board of Liq. v., 67, 

69 seq., 88 
McConnaughy, Pennoyer v., yy, 

79, 84 
McDaniel, U. S. v., 43 
McDowell, Grisar v., 62 
McGahey v. Va., 50, 96 
McGhee, Fitts v., 95, 96 seq., 103 
McLemore, U. S. v., 43 
McNeill v. So. Pac. Ry. Co., 93 
Macon & B. R. R. Co., Cunning- 
ham v., 40, 51, 57, 65, 68, 72, 

79, 81, 112, 113 
Madrazo, Gov. of Ga. v., 23, 54, 

112 
Marye v. Parsons, 96 
Maryland, Van Stophorst v., 16 
Mason v. Intercolonial Ry., 13 
Massachusetts, R. I. v., 20 
Meigs V. McClung, 61 



Table of Cases. 



Vll 



Michigan Land & Lumber Co. 
y. Rust, 85 

Michigan State Bank v. Ham- 
mond, 58, 65 

Michigan, U. S. v., 25 

Minnesota v. Hitchcock, 29, 41, 
8S,. IIS 

Mississippi v. Johnson, 82 

Mississippi R. R. Com'n. v. 111. 
Cent. R. R. Co., 93 

Missouri v. Dockery, 108 

Missouri v. Illinois, 11 

Missouri, K. & T. R. R. Co. v. 
Mo. R. R. & W. Com'n., 41 

Murray v. Wilson Distilling Co., 

59 
Nathan v. Va., 38 
Neganab v. Hitchcock, 87 
New Hampshire v. La., 23, 27, 

113 

New Jersey v. N. Y., 20 

New York, Barney v., 95, 106 

seq. 
New York, N. J. v., 20 
New York, Oswald, Adm'r. v., 16 
Noble V. Union R. Logging R. 

R. Co., 86 
North Carolina, S. D. v., 24, 25, 

26, 28 
North Carolina v. Temple, 22 
North Carolina, U. S. v., 25 
Oaks, Phelps v., 33, 35 
Oregon v. Hitckcock, 85 
Osborn v. Bank, 21, 47 seq., 

54, 57, 60, 81, 83, III, 117 
Oswald, Adm'r. v. N. Y., 16 
Parsons, Marye v., 96 
Pegues, Humphrey v., 34, 41 
Pelican Ins. Co., Wise, v., 17, 20 
Pennoyer v. McConnaughy, 77, 

79. 84 . . .J 

Pennsylvania v. Wheeling Bridge 

Co., 20 
Peters, U. S. v., 55, 60 
Phelps V. Oaks, 33, 35 
Pitcock V. State, 68, 88 
Planters' B'k of Ga., B'k of U. 

S. v., 42 
Poindexter v. Greenhow, 22, 36, 

49, 54, 112 
Polybank, Kawanakoa v., ib, 21 
Postal Tel. Co. v. Ala., 17, 29, 

33. 115 



Prentis v. Atl. Coast Line R. R. 

Co., 103 
President & Dir'trs, etc. v. Ark., 

43 
Preston v. Walsh, 84 
Prout V. Starr, 89, 90, 92, 115 
Railroad Com'n. v. T. & A. R. 

R. Co., loi 
Railroad Co. v. Alsbrook, no 
Reagan v. Farmers' L. & T. Co., 

30, 41, 94 seq., 108 
Reeside v. Walker, 43 
Reeves, Smith v., 23, 35, 40, 96 
Rhode Island v. Mass., 20 
Ringgold, U. S. v., 43 
Rives, Va. v., 107 
Rolston V. Crittenden, 68, 76 
Ross, Ferguson v., 42 
Rust, Mich. Land & Lumber Co. 

v., 85 
Salem Flouring Mills Co. v. 

Lord, S3 
Schild, Belknap v., 50 seq., in, 

117 
Schwalby, Stanley v., 16, 44, 65, 

III 
Shield V. Barrow, 40 
Smith V. Reeves, 23, 35, 40, 96 
Smith, Warner Valley Stock Co. 

v., 89 
Smyth V. Ames, 30, 91, 94 seq., 

115 
South and No. Ala. R. R. Co. 

V. Ala., 31, 36 
South Carolina v. U. S., 103 
South Carolina v. Wesley, in 
South Dakota v. N. C, 24, 25, 

26, 28 
Southern, Hagood v., 51. 78, 80 
Southern Pac. Ry. Co., McNeill 

v., 93 
Southern Ry. Co., State v., lOi 
Stanley v. Schwalby, 16, 44, 65, 

III 
Stanton, Ga. v., 82 
Starr, Prout v., 89, 90, 92, nS 
State Board of Land Com'rs. v. 

Carpenter, 84 
State, Bouldin v., 44 
State ex rel Hart v. Burke, 74, 

75 



Vlll 



Table of Cases. 



State ex rel Newman v. Burke, 

75 
State, Pitcock v., 68, 88 
State V. Southern Ry. Co., loi 
Steamship Scotia, Young v., 13, 

39 
Steele, La. v., 80 
Tampa & A. R. R. Co., R. R. 

Com'n. v., loi 
Temple, N. C. v., 22 
Tennessee Copper Co., Ga. v., 

24 
Tennessee, M. & C. R. R. Co. 

v., 31, 36 
Terrell, Case v., 40, 44 
Texas, La. v., 108 
Texas, U. S. v., 23, 25 
The Charkieh, 12 
The Davis, 12, 38, 42, 62 
The Exchange, 12, 60 
The Fidelitj"-, 13 
The Jassy, 13 
The Parlement Beige, 11, 13 
The Siren, 11, 43 
The St. Jago de Cuba, 43 
Thompson, Lowry v., 59, 115 
Tindal v. Wesley, 65 
Trapnall, Woodruff v., 69 
Tyler, In re, 50, 87 
Union R. Logging R. R. Co., 

Noble v., 86 
United States, Carr v., 16, 44, 

62, 64, 112 
United States, De Groot v., 44 
United States v. Eckford's 

Ext'rs, 43 
United States, Gratiot v., 43 
United States v. Guthrie, 73 
United States, Hill v., 44 
United States, Kansas v., 26 
United States v. Klein, 44 



United States v. Lee, 10, 22, 44, 
51, 56, 59 seq., iii, 112, 114, 
117 
United States v. McDaniel. 43 
United States v. McLemore, 43 
United States v. Mich., 25 
United States v. N. C, 25 
United States v. Peters, 55, 60 
United States v. Ringgold, 43 
United States, S. C. v., 103 
U^nited States v. Texas, 23, 25 
United States v. Wilder, 13, 38, 

Van Stophorst v. ]Md., 16 
Virginia, Cohens v., 16, 21, 42 
Virginia, Ex parte, 107 
Virginia, Grayson v., 20 
Virginia, Hollingsworth v., 19 
Virginia, IMcGahey v., 50, 96 
Virginia, Nathan v., 38 
Virginia v. Rives, 107 
Walker, Reeside v., 43 
Walsh, Preston v., 84 
Warner Valley Stock Co. v. 

Smith, 89 
Wesley, S. C. v., iii 
Wesley, Tindal v., 65 
Weyler v. Gibson, 65 
Wheeling Bridge Co., Pa. v., 20 
Wilcox v. Jackson, 61 
Wilder, U. S. v., 13, 38, 42 
Wilson Distilling Co., Murray v., 

5.9 
Wisconsin, Hall v., 31 
Wisconsin v. Pelican Ins. Co., 

17, 20 
Wood, Hunter v., loi 
Woodruff V. Trapnall, 69 
Woolsey. Dodge v., 49 
Young, Ex parte, 24, 31, 52, 90 

seq., IDS, 116, 117 
Young V. S. S. Scotia, 13, 39 



PART I. 
SUITS AGAINST THE STATE. 



CHAPTER I. 

The General Doctrine. 

Its foundation. 

The doctrine that the sovereign power may not be sued 
without its consent came to the United States as a part of 
the English law. In Continental jurisprudence it has a more 
limited scope than in English law. Ultimately, the doctrine 
goes back to the Roman law. 

In England, at the time of the institution of royal courts, 
it would have been a strange proceeding for judges, acting 
for the king as his personal agents, to have attempted to 
hale him into court against his will. The principle of 
Roman law that "the will of the prince is law," though 
never adopted in England, influenced the judges to some 
extent, and ser^-ed to give color to the immunity of the 
king. Later, the position of the courts became established, 
absolutism was definitely negatived by the rise of constitu- 
tional monarchy, and the king in his public capacity be- 
came differentiated from the king in his private capacity. 
The reason stated above then no longer applied to suits 
against him in his private character; and his immunit>' in 
this respect is simply a historical persistence.^ The same 
reason continued, on the other hand, for the immunity of 
the crown as the personification of the English state. It 

^For a tendency, however, to accord a similar inununitj- to the 
president of the United States, as a matter of pubbc pohcy m the 
case of the chief executive, see Goodnow: Advitn. Law of the U. ^., 
pp. 9h 435- 

9 



lO The Non-Suability of the State. 

is the ground upon which Justice Miller rested the doctrine 
of the non-suability of the state : " It seems most probable 
that it has been adopted in our courts as a part of the 
general doctrine of publicists that the supreme power in 
every state, wherever it may reside, shall not be compelled, 
by process of courts of its own creation, to defend itself in 
those courts."^ And it is this ground, namely, that a court, 
the agent of the state, cannot subject its creator to its 
jurisdiction, that is here adopted as the most obvious and 
sensible explanation. 

Acceptance of this foundation of the doctrine does not 
prevent the recognition of other reasons in justification. 
The courts commonly dwell upon the public policy and 
practical utility of the exemption. Justice Gray expressed 
this view admirably : " The broader reason is that it would 
be inconsistent with the very idea of supreme executive 
power, and would endanger the performance of the public 
duties of the sovereign, to subject him to repeated suits as 
a matter of right, at the will of any citizen, and to submit to 
the judicial tribunals the control and disposition of his 
public property,, his instruments and means of carrying on 
his government in war and in peace, and the money in his 
treasury."^ 

Another view of the exemption, resting upon the eminent 
authority of Justice Holmes, is this : " A sovereign is exempt 
from suit, not because of any formal conception or obsolete 
theory, but on the logical and practical ground that there 
can be no legal right as against the authority that makes 
the law on which the right depends."^ This afforded a 
basis for the extension of the exemption to the territory 
of Hawaii: "As the ground is thus logical and practical, 
the doctrine is not confined to powers that are sovereign in 
the full sense of juridical theory, but naturally is extended 
to those that, in actual administration, originate and change 
at their will the law of contract and property, from which 

"■ U. S. V. Lee, io6 U. S. 196. ~ 

Briggs V. Light-boats, 11 Allen 157, 162. 
'Kawanakoa v. Polybank, 205 U. S. 349. 



The General Doctrine. 1 1 

persons within the jurisdiction derive their rights. A suit 
presupposes that the defendants are subject to the law 
invoked. Of course, it cannot be maintained unless they 
are so. But that is not the case with a territory of the 
United States, because the territory itself is the fountain 
from which rights ordinarily flow." 

Now, this view of Justice Holmes was not necessary to 
the decision. The reason of public policy might well have 
been held to extend to a government exercising such broad 
powers as the territory of Hawaii. Or, the view might 
have been taken — which I think is the proper view of all 
local governments — that a territory stands, for its. purposes, 
simply in the stead of the superior government, and is 
therefore entitled to the same immunity from suit, an 
immunity which the territory, not being made a mere muni- 
cipal corporation, has not lost. Nor do I think that the 
view of Justice Holmes is sound. His statement that "a 
suit presupposes that the defendants are subject to the law 
invoked " is contrary to the position towards which he 
inclined in Missouri v. Illinois,^ and which Justice Brewer 
adopted in Kansas v. Colorado,^ that, in the main, there is 
no law governing the States in relation to each other, and 
that the supreme court must build up what Justice Brewer 
called an " interstate common law." Law is necessary for 
jurisdiction; but, having jurisdiction, it is the function of a 
court to administer justice, according to law if any law is 
applicable, but to administer justice at all events. If no 
law is applicable, the court should, in the language of 
Justice Holmes, " be governed by rules explicitly or implicitly 
recognized" in the relations of the parties. The state, in its 
relations to individuals, may be considered as acting with 
reference to the ordinary principles of law. Certain it is 
that the courts are constantly applying to cases between the 
state and individuals, with certain modifications, the ordi- 
nary principles of law. And this is true, not only in the 
matter of contracts, but even in such cases as " The Siren "' 

^ 200 U. S. 496. 

» 206 U. S. 46. 

7 Wall. 152. 



12 The Non-Suability of the State. 

and " The Davis,"^ in which maritime Hens were held to 
attach to property of the United States just as to property 
of individuals. 

In international law. 

The discussion thus far has related to the immunity of 
the state from suit in its own courts. The immunity in the 
courts of another state must, of course, rest upon a different 
basis. It is founded upon the international comity accord- 
ing to which, in the language of Chief Justice Marshall, " all 
sovereigns have consented to a relaxation, in practice, in 
cases under certain peculiar circumstances, of that absolute 
and complete jurisdiction within their respective territories 
which sovereignty confers,"^ in favor of other sovereigns. 

The extent of the exemption depends upon the point of 
view. Sir Robert Phillimore, in the case of " The Char- 
kieh,"^ stated the principle to be that the sovereign " is 
personally exempt from all process in a civil cause, and 
from any action which renders such service necessary." 
An admiralty proceeding in rem does not require such ser- 
vice. The exemption of property of a foreign sovereign 
from such an action he rested, therefore, not upon tne 
immunity from suit, but separately upon the same "object 
of international law" as sustains the personal immunity 
from suit — " to substitute negotiations between govern- 
ments . . . for the ordinary use of courts of justice in cases 
where such use would lessen the dignity or embarrass the 
functions of the representatives of a foreign state." He 
limited the exemption, accordingly, to cases where the res 
" can in any fair sense be said to be connected with the 
jus coronse of the sovereign"; though he doubted but what, 
even in the case of a pubHc war vessel, a proceeding in rem 
might be maintained where a maritime lien is given by the 
jus gentium. A similar view — that certain classes of prop- 
erty devoted to religious or public purposes are exempt 
from liens, but that where such a lien exists it may be en- 

1 10 Wall. IS. 

2 " Ti,„ rr,.^u 



'10 Wall. IS. 

' "The Exchange," 7 Cranch ii6. 
42 L. J. Adm. 17. 



The General Doctrine. 13 

forced in rem— is indicated in the opinion of Justice Story 
in U. S. V. Wilder.! c^ief Justice Waite, also, in "The 
Fidelity,"^ took the view that the exemption of public 
vessels from admiralty suits in rem arises not out of a want 
of power to sue the public owner, but out of a want of 
liability on the part of the vessel. All of these expressions, 
it may be said, are purely obiter. 

The position of Sir Robert Philhmore was repudiated by 
the court of appeals in "The Parlement Belge,"^ revers- 
ing his decision refusing exemption to a vessel, the public 
property of Belgium, used for the mails, and incidentally 
engaged in ordinary carrying trade. The court criticized 
his " intimation of an opinion, not yet conclusively formed, 
that proceedings in rem are a legal procedure solely against 
property, and not directly or indirectly against the owner 
of the property"; and regarded a libel in rem as an in- 
direct way of impleading the owner, the result of admiralty 
necessity. "To implead an independent sovereign in such 
a way is to call upon him to sacrifice either his prop- 
erty or his independence. To place him in that position 
is a breach of the principle upon which his immunity from 
jurisdiction rests." The same view of a libel in rem was 
taken by the judicial committee of the privy council in 
Young V. S. S. Scotia,'' in which it was held that a lien for 
salvage could not be enforced against a ferry-boat, the prop- 
erty of the crown, destined for service in the operation of 
a government railway in Canada. " Where you are dealing 
with an action in rem for salvage, the particular form of 
procedure which is adopted in the seizure of the vessel is 
only one mode of impleading the owner." In " The Jassy,"'^ 
a vessel owned under similar conditions by the Roumanian 
government was held exempt. In Mason v. Intercolonial 
Railway of Canada,^ the supreme court of Massachusetts 

^ 3 Sumner 308. 

= 16 Blatchf. 569. 

*5 Prob. Div. 197. 

♦89L. T. 374. 

*75 L. J. (N.S.) P.D & Adm. Div. 93- 

' 197 Mass. 349. 



14 The Non-Suability of the State. 

dismissed for want of jurisdiction a suit by trustee process 
for a tort against the Intercolonial Railway, unincorporated, 
the property of the crown. 

The better view, then, of the principle governing the 
immunity of a state from suit in the courts of another state, 
is that no state will subject another state to its territorial 
jurisdiction; so that the immunity extends, not only to 
actions requiring personal process, but also to actions in rem 
against the property of the state. 



CHAPTER 11. 

The Doctrine in the United States. Under the Fed- 
eral Constitution. 

In Chisholm v. Georgia/ some doubt was expressed as 
to the applicability of the doctrine of non-suability of the 
state to a republic. Justice Wilson limited the doctrine to 
autocratic sovereigns. In the United States, according to 
his view, the people are sovereign; they have not delegated 
all their powers to the State governments; hence these 
governments — or, regarded as artificial persons, the States 
— are not sovereign in this sense. This reasoning applies as 
much to the United States as to a State; though Justice 
Wilson did not expressly say that the United States is liable 
to suit. Doubtless, he would have found some ground of 
distinction. Chief Justice Jay adopted a somewhat different 
line of reasoning. Immunity from suit, he said, naturally 
attached to a feudal sovereign as the sole fountain of 
justice; but where the citizens are equal and are joint 
tenants of the sovereignty, there is no reason why one 
citizen may not sue the rest. He saw no more difficulty in 
a suit against the fifty thousand citizens of Delaware, than 
against the forty thousand of the city of Philadelphia. The 
liability of the United States to suit he doubted simply on the 
practical ground that the courts of the United States could 
not rely on the executive arm of the government in such 
case to support their proceedings and judgments. 

Manifestly, these views are based on false political 
theories. And the doctrine of non-suability of the state 
was early established in American law. It was accepted 
by all in the discussions in convention over the clause in 
the constitution extending the judicial power of the United 

*2 Dall. 419. 

15 



1 6 The Non-Suability of the State. 

States to " controversies between a State and the citizens 
of another State." It was no doubt clinched by the storm 
of protest raised by Chisholm v. Georgia. No State court 
has seriously questioned it. And in Cohens v. Virginia/ in 
which, according to Justice Miller, the general doctrine was 
first recognized by the supreme court, it was taken for 
granted. 

A different question is whether, in our federal system, 
the United States and the States, respectively, are entitled 
to immunity from the jurisdiction of the courts of the 
other. The State courts have never denied the immunity 
of the United States. And, as might be expected, the 
supreme court will enforce this immunity, as in Stanley v. 
Schwalby,^ by reversing the action of a State court.^ This 
action is abundantly justified on the ground of the supremacy 
of the federal government, or of an implied principle of 
our federal system, as in the matter of exemption of federal 
and State governmental agencies, respectively, from taxation 
by the other. 

The question of the liability of a State to suit in a court 
of the United States arose upon a construction of the pro- 
vision of article III of the constitution, that "The judicial 
power of the United States shall extend ... to contro- 
versies . . . between a State and citizens of another State." 
In August term, 1791, Alexander Chisholm, a citizen of 
South Carolina, brought action of assumpsit in the supreme 
court against the State of Georgia.* On July 11, 1792, the 
marshal for the district of Georgia made return of service 
on the governor and attorney general of Georgia. On August 
II, Attorney General Randolph, counsel for plaintiff, 
moved : " That unless the State of Georgia shall, after rea- 
sonable previous notice of this motion, cause an appearance 

1 6 Wheat. 382. ~ ~ 

^162 U. S. 255. In this case, the Texas court considered that the 
United States had waived its immunity. The supreme court held 
contra. 

^ See also Carr v. U. S., 98 U. S. 433. 

*2 Dallas 419. Similar cases brought about the same time — ^Van 
Stophorst V. Md., 2 Dall. 401, Oswald Admr. v. State of N. Y., 2 
Dall. 401, 2 Dall. 415. 



The Doctrine in the United States. 17 

to be entered in behalf of the said State, on the fourth day 
of the next term, or shall then show cause to the contrary, 
judgment shall be entered against the said State, and a writ 
of enquiry of damages be awarded." But, to avoid every 
appearance of precipitancy, and to give the State time to 
deliberate on the measures she ought to adopt, on motion of 
Mr. Randolph it was ordered by the court that the con- 
sideration of the motion be postponed to the next term. 
Messrs. Ingersoll and Dallas presented a written remon- 
strance and petition on behalf of Georgia against the exer- 
cise of jurisdiction in the cause; but, in consequence of 
positive instructions, they declined taking any part in argu- 
ment. The case was submitted on February 5, 1793, on the 
argument of Mr. Randolph alone. On February 18, the 
decision of the court was handed down on the great ques- 
tion whether a State might be involuntarily impleaded in a 
federal court. Four justices — John Jay, Chief Justice, of 
New York; John Blair, of Virginia; William Gushing, of 
Massachusetts; and James Wilson, of Pennsylvania — joined 
to hold the State liable. James Iredell, of North Carolina, 
alone dissented. 

The main stand of the majority was upon the letter of the 
constitution. As Mr. Randolph argued, conceding, as he 
did, the sovereignty of the States, if the constitution pro- 
vided for jurisdiction over them by the federal courts, that 
was simply one of many diminutions of sovereignty. On 
the other hand, the provision might be construed in the light 
of established principles, as the grant of judicial power has 
been construed in other respects.^ The courts of the United 
States are courts of limited jurisdiction; and, if the judicial 
power had not been extended to cases in which a State 
should be a party, no jurisdiction could have been enter- 
tained in such cases even with the consent of the State. ^ 
The provision covering such cases might well be construed 
as conferring jurisdiction subject to the established doctrine 

1 Cherokee Nation v. Georgia, 5 Pet. i. Wisconsin v. Pelican Ins. 
Co., 127 U. S. 265. 

2 Postal Tel. Co. v. Alabama, 155 U. S. 482. 



1 8 The Non-Suability of the State. 

that a state cannot be sued without its consent. Justice 
Iredell was strongly of opinion that the constitution was to 
be construed "as intending merely a transfer of jurisdiction 
from one tribunal to another." And this view was adopted 
by Justice Bradley, speaking for the court in Hans v. 
Louisiana.^ " The truth is that the cognizance of suits and 
actions unknown to the law, and forbidden by the law, was 
not contemplated by the constitution when establishing the 
judicial power of the United States. . . . The suability of a 
state without its consent was a thing unknown to the law." 
Which construction was proper should have been deter- 
mined upon two considerations: the spirit of the constitu- 
tion, and the intention of those who adopted it. Justice 
Wilson and Attorney General Randolph, the master minds 
on their side, were strongly convinced of the necessity of 
allowing suits against the States in the courts of the United 
States on federal grounds — the maintenance of harmony, 
and the enforcement of constitutional limitations.^ Natu- 
rally, with such political views, they held that the spirit of 
the constitution demanded a literal construction. Justice 
Iredell differed even upon the question of policy. The other 
consideration, the actual intention upon the particular point 
of those who adopted the constitution, was completely 
ignored. In the main, the provision seems to have been 
overlooked in the State conventions. But where its signifi- 
cance was appreciated, it was made the subject of violent 
attacks by the opponents of the constitution, attacks that 
were successfully met only by the solemn assurances of its 
friends — Hamilton, Madison, Marshall — that such an un- 
heard of thing as a suit by an individual against a State was 
never contemplated. Certainly, it may be taken for granted 

^ 134 U. S. I. 
_^ Randolph had expressed similar views in the Virginia conven- 
tion, Wilson was probably responsible for the provision in ques- 
tion. 

For a collection of the historical facts upon the provision of the 
judiciary article, upon Chisholm v. Ga., and upon the adoption of 
the nth amendment, see "The Eleventh Amendment", an address 
before the Virginia State Bar Assn., July 30, 1907, by A. Caperton 
Braxton. 



The Doctrine in the United States. 19 

that the constitution could never have been adopted if it 
had been understood to contain the doctrine of Chisholm v. 
Georgia. The action of the court was regarded as the 
imposition of personal political views. It was met by a 
storm of protest throughout the country, and the reversal of 
the action by the eleventh amendment.^ 

Justice Iredell, although expressing an opinion strongly 
against a literal construction of the constitution, restricted 
his decision to a narrower ground. He took the position 
that the constitutional grant of judicial power required 
legislation by congress to put it into effect ; and that " what- 
ever be the true construction of the constitution in this 
particular ; whether it is to be construed as intending merely 
a transfer of jurisdiction from one tribunal to another, or 
as authorizing the legislature to provide laws for the deci- 
sion of all possible controversies in which a State may be 
involved with an individual, without regard to any prior 
exemption; yet it is certain that the legislature has in fact 
proceeded upon the former supposition, and not upon the 
latter." The judiciary act conferred upon the courts of 
the United States the power to issue certain specified writs, 
and such other writs as should be necessary to the exercise 
of their jurisdiction, " agreeable to the principles and usages 
of law." But, Justice Iredell reasoned, this did not confer 
power to issue a writ against a State, because there was no 
mode applicable of proceeding against a State " agreeable to 
the principles and usages of law." None of the States made 
provision for such proceedings at the time of the judiciary 
act, even if such provision would have availed in this case. 
The only other possible source was the English law ; and 
in a learned exposition of petition of right and of process 
in exchequer, Justice Iredell showed that these remedies 
against the crown were of an entirely different nature than 
the action in hand. 



^ In February term, 1794, judgment was entered for the plaintiff 
in Chisholm v. Georgia, and the writ of enquiry awarded. The 
writ, however, was never sued out and executed; so that the cause, 
with all similar causes, was swept from the records by the eleventh 
amendment, agreeably to the unanimous determination of the judges 
in Hollingsworth v. Va., February term, 1798. 



20 The Non-Suability of the State. 

This reasoning, it seems to me, is faulty. It would limit, 
in cases where a State is suable as of right, to forms of 
action where the state is not suable as of right. If a State 
is suable as of right, the ordinary forms of action ought to 
lie. Thus, Attorney General Randolph took it for granted 
that, if a State is liable to suit, assumpsit would lie. The 
majority justices did not discuss the question upon which 
Justice Iredell based his decision, except as to the matter 
upon whom service on the State should be served, upon 
which they agreed that the service in the case in hand was 
sufficient. Certainly, the supreme court has always held 
itself fully equipped, as to process, service, course upon fail- 
ure to appear, judgment, to exercise its original jurisdiction 
in cases in which a State is a party.^ 

If the view be adopted that the constitutional provision 
extending the judicial power to suits between a State and 
the citizens of another State is to be construed in the light 
of established principles, the question remains whether the 
position of the States in the Union is such as to entitle them 
to the principle of exemption in a court of the United 
States. This question was not satisfactorily discussed in 
Chisholm v. Georgia. As already stated, those of the 
majority, in the main, whether accepting the sovereignty of 
the States or expressing no opinion thereupon, relied on 
the words of the constitution. Justice Wilson himself justi- 
fied his grandiloquent pronouncement that "the question 
. . . may, perhaps, be ultimately resolved into one no less 
radical than this — do the people of the United States form a 
nation?" by no real exposition of the position of a State in 
the Union. The theory of divided sovereignty accepted at 
the time of Chisholm v. Georgia would clearly sustain the 
exemption. Whether, accepting the present doctrine of the 

^ For rules of court governing cases in which a State is defendant, 
see Grayson v. Va., 3 Dall. 320. 

For varying opinions as to whether the power to exercise the orig- 
inal jurisdiction conferred by the constitution is inherent in the 
supreme court, or whether it is derived from act of congress, see 
N. J. v. N. Y., 5 Pet. 284 ; R. I. v. Mass., 12 Pet. 657 ; Pa. v. Wheel- 
ing, etc. Bridge Co., 13 How. 518; Fla. v. Ga., 17 How. 478; Ky. v. 
Dennison, 24 How. 66. Also Wise. v. Pelican Ins. Co., 127 U. S. 265. 



The Doctrine in the United States. 21 

unity of sovereignty in the United States, the exemption of 
a State may be supported upon an implied principle of our 
federal system of government, may be debated, in view of 
other federal reasons in favor of liability. Looking at the 
matter entirely apart from the constitutional provision, a 
State would, of course, be entitled to exemption upon the 
extension of the principle, as in Kawanakoa v. Polybank,^ 
to any government that exercises general legislative powers. 
Whether, however, a principle of exemption based upon 
anything less than actual sovereignty should control the 
words of the constitution, seems doubtful. 

From the above discussion, it will be seen that the court 
had a difficult case in Chisholm v. Georgia. The decision, 
whether right or wrong, that a State might be subjected to 
suit by a citizen of another State, was, however, overturned, 
and the question finally settled by the eleventh amendment, 
providing that " The judicial power of the United States 
shall not be construed to extend to any suit in law or equit}\ 
commenced or prosecuted against one of the United States 
by citizens of another State, or by citizens or subjects of any 
foreign state." 

Evidently, the idea never occurred to anyone at the time 
of the adoption of the eleventh amendment that a suit 
might be brought in a court of the United States against 
a State by its own citizen, under the grant of judicial power 
over " all cases in law and equity arising under the consti- 
tution or laws of the United States." And, from the time of 
the eleventh amendment, it was generally recognized that 
no individual could subject a State to suit. It is true that, 
in Cohens v. Virginia,- Chief Justice Marshall used language 
that seemed to indicate that the exemption did not extend 
to suits against a State by its own citizens ; but this sugges- 
tion, which was later the main reliance of plaintiff in Hans 
v. Louisiana, was entirely unnecessary to the case. In 
Osborn v. Bank,^ although the bank was a corporation of 

' 205 U. S. 349- 
» 6 Wheat. 264. 
*-9 Wheat. 738. 



22 The Non-Suability of the State. 

the United States, and therefore not within the terms of the 
eleventh amendment, the chief justice discussed the case 
upon the basis of the non-suability of the State. In United 
States V. Lee,^ Justice Miller said : " It is obvious that, in 
our system of jurisprudence, the principle is as applicable 
to each of the States as it is to the United States." And 
Justice Gray declared in the same case : " The decision in 
Chisholm v. Georgia was based on a construction of the 
words of the constitution. . . . That construction was set 
aside by the eleventh amendment." In Poindexter v. 
Greenhow,^ the court discussed all the cases upon the basis 
of non-suability of a State, although in the title case the 
parties were both citizens of Virginia. And in his dissenting 
opinion, concurred in by three other justices. Justice 
Bradley expressly took the ground that, although the 
eleventh amendment does not apply to suits against a State 
by its own citizens, it would be absurd to maintain such 
liability. 

In Hans v. Louisiana,^ the question came squarely before 
the supreme court, on appeal from a decision of the United 
States circuit court, dismissing a suit brought, on a federal 
ground, by a citizen of Louisiana against the State of 
Louisiana.* The court unanimously affirmed the decision 
below. Justice Bradley, speaking for the court, said : "Ad- 
hering to the mere letter, it might be so ; and so, in fact, the 
court held in Chisholm v. Georgia; but looking at the subject 
as Hamilton did, and as Justice Iredell did, in the light of 
history and experience and the established order of things, 
the views of the latter were clearly right — as the people of 
the United States in their sovereign capacity subsequently 
decided." That the principle of immunity applied to the 
States, he seems not to have doubted; and the eleventh 
amendment he regarded as having established a rule of 
construction for one clause that ought to be applied also to 
other similar clauses. 

1 io6 U. S. 196. 

2 114 U. S. 270. 

3 134 U. S. I. 

* Reaffirmed in North Carolina v. Temple, 134 U. S. 22. 



The Doctrine in the United States. 23 

Justice Harlan expressed his disapproval of the criticism 
of Chisholm v. Georgia. His opinion, it seems, however, 
was simply that literal construction was proper at that time, 
and not that the principle of immunity does not naturally 
apply to the States ; for in United States v. Texas,^ he said 
of Hans v. Louisiana: "That case, and others in this court 
relating to the suability of States, proceeded upon the broad 
ground that it is inherent in the nature of sovereignty not 
to be amenable to the suit of an individual without its con- 
sent." It may be said that the decision in Chisholm v. 
Georgia, in favor of literal construction of the constitu- 
tion as it then stood, seems, also, to be approved by Chief 
Justice Marshall in Cohens v. Virginia, in marked incon- 
sistency with his assurances in the Virginia convention. In 
New Hampshire v. Louisiana,- Chief Justice Waite used 
the fact that a direct remedy was given by the original 
constitution to citizens of one State against another State, 
as an argument against allowing the indirect remedy 
through the action of their State in their behalf. 

In Smith v. Reeves,^ the principle of Hans v. Louisiana 
was applied to exclude from the general right of a corpora- 
tion of the United States to bring suits in the courts of the 
United States, suits against a State. In Governor of Georgia 
V. Madrazo,* Justice Johnson, dissenting, held, and Chief 
Justice Marshall noticed the objection without ruling upon 
it, that the eleventh amendment applies only to suits in law 
and equity, and that the immunity of a State does not extend 
to suits in admiralty. In view of the subsequent attitude of 
the court, in favor of the immunity of a State from all 
suits by individuals, this view may be regarded as wrong. 

Some expressions in other cases seem to indicate a view 
that the exclusion of all suits by individuals against States 
was accomplished by the eleventh amendment, not by re- 
versing a rule of construction so as to secure to the States 
their proper exemption, but directly by awarding such an 

" 143 U. S. 621. 
' 108 U. S. 76. 
' 178 U. S. 436. 
*i Pet. no. 



24 The Non-Suability of the State. 

exemption. Thus, in South Dakota v. North Carolina/ Jus- 
tice Brewer, speaking for the majority, said: "We are not 
unmindful of the fact that in Hans v. Louisiana . . . Mr. 
Justice Bradley . . . expressed his concurrence in the 
views announced by Mr. Justice Iredell, in the dissenting 
opinion in Chisholm v. Georgia; but such expression can- 
not be considered as a judgment of the court, for the point 
decided was that, construing the eleventh amendment ac- 
cording to its spirit rather than by the letter, a State was 
relieved from liability to suit at the instance of an indi- 
vidual, whether one of its own citizens or a citizen of a 
foreign State." And in the dissenting opinion of the four 
justices in the same case, Justice White said of the decision 
in Hans v. Louisiana : " It held that the effect of the 
eleventh amendment was to qualify, to the extent of its 
prohibitions, the whole grant of judicial power; and, there- 
fore, although a suit by a citizen of a State against a State, 
to enforce assumed constitutional rights, was not within 
the letter of the amendment, it was within its spirit." Jus- 
tice Peckham, also, in delivering the opinion of the court 
in Ex parte Young, said, in conceding that the eleventh 
amendment must be given its full and fair meaning : " It 
applies to a suit brought against a State by one of its own 
citizens, as well as to a suit brought by a citizen of another 
State. Hans v. Louisiana. "2 

In the main, hov/ever, the court has recognized the im- 
munity from suits by individuals as a natural attribute of 
the States. As Justice Miller said, in United States v. Lee : 
" It is obvious that, in our system of jurisprudence, the 
principle is as applicable to each of the States as it is to 
the United States." Certainly, the States, though not sover- 
eign in political theory, have in general been accorded the 
attributes of sovereignty, as — to use a term of Justice 
Holmes^ — quasi-sovereign. 

The constitution also provides that the judicial power of 
the United States shall extend to controversies between two 

^ 192 U. S. 286. ~ 

''209 U. S. 123. 

^ Ga. V. Tenn. Copper Co., 206 U. S. 230. 



The Doctrine in the United States. 25 

or more States. The undoubted intent here would demand 
in any view that this provision should be held not to require 
the consent of a State sued. 

The jurisdiction over "controversies between a State 
. . . and foreign states," also conferred by the constitu- ifji .| 
tion, the court has never been called upon to exercise; but, ^p^ 

in view of the fact that the eleventh amendment left un- \t<^ ^61 
changed this part of the clause in the constitution, it may » >.^« 
be assumed that this provision would likewise be held not f^ 
to require the consent of a State sued. 

A question not quite so simple was whether a State 
could be subjected to suit by the United States. Justice 
Peckham, in United States v. Michigan,^ seemed to consider 
that such a suit might be entertained as "between States." 
So, also. Justice White, in South Dakota v. North Carolina.- 
But this view appears ill-founded. The jurisdiction must 
be sustained upon the clause extending the judicial power 
to " controversies to which the United States shall be a 
party." 

In Florida v. Georgia,^ Justices Campbell, Curtis, and 
McLean, dissenting, held that the United States could not 
sue a State ; that " the constitution did not enlarge the 
liability of States to suits, but only provided tribunals to 
which suits might be brought to which they were already 
subject." Chief Justice Taney, speaking for the court, 
touched upon the question merely in arguing that if the 
United States could not become a party, there was all the 
more reason for allowing the attorney general to argue in 
behalf of the United States without making the United 
States a party. In United States v. North Carolina,* the 
supreme court decided a case brought by the United States 
against North Carolina, the State making no objection. 

In United States v. Texas,^ objection was made, and the 
question came squarely before the court for decision. Juris- 



1 190 U. S. 379. 
« 192 U. S. 286. 
' 17 How. 478. 
^136 U. S. 211. 
S143 U. S. 621. 



26 The Non-Suability of the State. 

diction was upheld. Justice Harlan, delivering the opinion 
of the court, considered that, although " it is inherent in the 
nature of sovereignty not to be amenable to suit by an indi- 
vidual without its consent," " the question as to the suabili- 
ity of one government by another government rests upon 
wholly different grounds." This is, I think, an incorrect 
statement of the principle of non-suability of the State. 
The principle is not simply that sovereignty may not be 
sued by an individual, but that sovereignty is not subject 
to the jurisdiction of courts. The ruling in the case is 
abundantly justified, however, by weighty federal reasons, 
and by the fact that the States are subject to suit by one 
another. 

The converse of this case — a suit by a State against the 
United States — has also arisen. The view of Justice Har- 
lan that the principle of non-suability does not apply to suits 
by one government against another government would, of 
course, logically support such a case. Justice White, in 
South Dakota v. North Carolina,^ argued upon the assump- 
tion that such a suit may be maintained. In Kansas v. 
United States,^ however, the supreme court, without dis- 
sent, dismissed the case for want of jurisdiction, on two 
grounds : first, that the State had no substantial interest, 
and was simply acting for individuals ; second, that a State 
may not sue the United States without its consent. Chief 
Justice Fuller, delivering the opinion of the court, said : "It 
does not follow that because a State may be sued without 
its consent, therefore the United States may be sued by a 
State without its consent. Public policy forbids this con- 
clusion." This holding was unnecessary to the decision, and, 
therefore, to some extent extra-judicial. Yet it is, no doubt, 
to be accepted as final. It may, perhaps, be justified upon 
the ground that the reasons for allowing such suits are less 
urgent than in the converse case, upon the supremacy of 
the federal government, and upon the position of the court 
as a part of the federal government. 

1192 U. S. 286. 
* 204 U. S. 331. 



CHAPTER III. 

Principles of the Constitution of the United States 
Governing Suits Against States. 

The eleventh amendment and suits between States. 
In New Hampshire v. Louisiana and New York v. Lou- 
isiana/ the plaintiff States brought suit in the supreme 
court on bonds of the State of Louisiana assigned to them 
by their citizens for collection, the States acquiring no bene- 
ficial interest, but simply allowing the use of their names 
for the purpose of suit. There are two possible modes of 
viewing these cases : first, as actions in behalf of their citi- 
zens by the States in their sovereign capacity; second, 
simply as ordinary actions by holders of a bare legal title. 
Chief Justice Waite, who delivered the opinion, con- 
ceded the right to act thus in behalf of citizens as a " well 
recognized incident of national sovereignty"; but argued 
that the means are by diplomatic negotiations, treaty, and 
war, and that, since the States do not possess these attri- 
butes of independent nations, they cannot so act. Such, 
it is true, are the means between independent nations. But. 
although the States have lost these means, it has been re- 
peatedly held that the constitution substituted a judicial 
remedy for controversies of a justiciable nature. The force 
of Chief Justice Waite's further argument— that the grant 
in the constitution of a direct remedy by citizens of one 
State against another State impliedly negatived the indirect 
remedy, and that the taking away of the direct remedy by 
the eleventh amendment did not restore the indirect remedy 
—depends upon whether Chisholm v. Georgia be viewed as 
right or, as it is viewed in Hans v. Louisiana, as wrong. 
Upon the other aspect of the case, it has been repeatedly 

* io8 U. S. 76. 

27 



28 The Non-Suability of the State. 

stated that jurisdiction was wanting because the plaintiff 
States had no real interest. But such a title is sufficient, on 
ordinary principles of law, to constitute the holder a real 
party to an action. The proper ground for the unanimous 
decision for dismissal is that the case was a palpable attempt 
to evade the eleventh amendment. As Justice White ex- 
plained the case in South Dakota v. North Carolina:^ 
" The case was decided, not upon the particular nature of 
the title of the bonds and coupons asserted by the States, 
since it was conceded that, but for the constitution, a title 
such as that propounded would have given rise to an 
adequate cause of action. The ruling of the court was that, 
as suits against a State upon the claims of private individuals 
were absolutely prohibited by the eleventh amendment, 
such character of claim could not be converted into a con- 
troversy between States, and thus be made justiciable, since 
to do so would destroy the prohibition which the eleventh 
amendment embodied." 

Some years later. South Dakota brought suit in the su- 
preme court on bonds of North Carolina that had been 
assigned to her outright as an absolute gift. One motive 
of the donor was doubtless to make North Carolina pay, 
even if he got no benefit. A more substantial motive was 
the prospect that, if the suit by South Dakota were suc- 
cessful, North Carolina would be inclined to make a settle- 
ment with other bondholders, of whom he remained one. 
The question was whether such a suit was prohibited by 
the spirit of the eleventh amendment. The case might 
with good reason have been decided either way; and it is 
not surprising that the decision upholding jurisdiction was 
carried by only five to four. On the one hand, was the fact 
of the substantial interest of the State, and the absence of 
interest of individuals. On the other hand, the federal 
policy that prompted the grant of jurisdiction over contro- 
versies between States hardly extends to such a suit. 
Moreover, to allow such suits certainly opens the way, at 
least, as in the case in hand, to evasions of the eleventh 

1 192 U. S. 286. 



Principles of Constitution Governing Suits. 29 

amendment. Justice White, in the able dissenting opinion, 
said : " My mind cannot escape the conclusion that if, 
wherever an individual has a claim, whether in contract or 
tort, against a State, he may, by transferring it to another 
State, bring into play the judicial power of the United 
States to enforce such claim, then the prohibition contained 
in the eleventh amendment is a mere letter, without spirit 
and without force." He argued that the obligations of a 
State taken up by individuals are without sanction, other 
than the good faith and honor of the sovereign itself; and 
that, if acquired by another State, they remain subject to 
the same conditions. 

A compromise was suggested by Air. Carman F. Ran- 
dolph, writing in the Columbia Law Review: "If a State of 
the Union becomes indebted in due course to the United 
States, or to another State (perhaps to a foreign state), it 
is Hable to suit. And this is so if evidences of debt, origi- 
nally in private hands, come into public treasuries in due 
course. But where a claim is acquired by a government 
only because a private claimant cannot secure its payment, 
a suit for its recovery should be dismissed as an attempt to 
evade the eleventh amendment."^ Such a distinction, even 
if practicable, has no real foundation in principle. The 
jurisdiction over controversies between States might, how- 
ever, perhaps with better reason, have been held to include 
only cases arising directly between States, and not cases 
arising merely from the acquisition of choses in action. 

Consent of State and jurisdiction of federal courts. 

The courts of the United States, being courts of limited 
jurisdiction, cannot, even by consent of the parties, exercise 
jurisdiction not conferred by the constitution.- If, there- 
fore, the constitution has not extended the judicial power 
to cases in which a State is party, consent of a State can- 

^ " Notes on suits between States " : Col L. Rev., II, 283. 

* See Postal Tel. Co. v. Ala., 155 U. S. 482, in whichthe supreme 
court of its own motion raised an objection to jurisdiction. Also, 
Minn. v. Hitchcock, 185 U. S. 373. 

3 



30 The Non-Suability of the State. 

not confer it. The constitution did extend the judicial 
power in certain cases over suits by individuals against 
States. This might have been construed as allowing suits 
only with the consent of the States sued. In Chisholm v. 
Georgia, however, literal construction was adopted. Now, 
if the eleventh amendment had simply reversed this con- 
struction, jurisdiction might still have been entertained with 
the consent of the States sued. But the eleventh amend- 
ment did not stop there; it provided that "The judicial 
power shall not be construed to extend to any suit in law 
or equity commenced or prosecuted against any of the 
United States by citizens of another State, or by citizens 
or subjects of a foreign state." The effect was just as if 
the judicial power had never been extended to such cases. 
It would seem clear, therefore, that consent of the States 
cannot confer jurisdiction.^ 

Of course, unless the immunity of the States from suits 
by individuals in cases not covered by the terms of the 
eleventh amendment be held to be due, not to the reversal 
of a rule of construction so as to uphold their natural 
immunity, but to a direct extension of immunity by the 
spirit of the eleventh amendment,^ there is nothing to 
prevent jurisdiction with consent of the State in suits by 
individuals against States under clauses of the constitution 
not altered by the eleventh amendment. 

Although the point is so clear, there is authority to the 
contrary in the supreme court reports. Justice Brewer, 
in Reagan v. Farmers' Loan and Trust Company,^ said it 
might well be argued that "the limitation of the eleventh 
amendment simply creates a personal privilege which can 
at any time be waived by the State," although it was un- 
necessary to go so far in that case. In Smyth v. Ames,* 
Justice Harlan, in the opinion of the court, said of the 
objection that the suit was against the State: "This point 

^See Wm. D. Guthrie: "The Eleventh Amendment": VIII Col. 
L. Rev., 183. 
* See above, p. 23. 
'154U. S. 362. 
*i69U. S. 466. 



Principles of Constitution Governing Suits. 31 

is perhaps covered by the general assignments of error, but 
it was not discussed at the bar by the representatives of the 
State board. It would, therefore, be sufificient to say that 
these are cases of which, so far as the plaintiffs are con- 
cerned, the circuit court has jurisdiction," on the grounds 
both of diverse citizenship and of a federal question; al- 
though he went on to hold that the case was not a suit 
against the State. Now, if such a suit might be a suit 
against the State, it was manifestly the duty of the court, 
even on its own motion, to examine the question. Of 
course, if the view be taken of suits against public officers 
that, when jurisdiction is lacking, it is not because in effect 
suits against States, but because there is no real ground of 
action against the defendants, this criticism is not in point. ^ 
The same remark applies to Illinois Central Railroad Com- 
pany V. Adams,^ in which the court held that a motion to 
dismiss for lack of jurisdiction is not the proper method of 
objection on this ground. It does not, however, cover the 
argument of Justice Harlan in his dissenting opinion in 
Ex parte Young,^ explaining away the Reagan and Smyth 
cases as forms of suits against themselves which the States 
had permitted. This position of Justice Harlan, involving 
the opinion that consent of a State may give jurisdiction of 
a case within the terms of the eleventh amendment, must, 
however, be viewed in the light of its argumentative pur- 
pose ; it is contrary to his expressions in other cases, and, 
as to Smyth v. Ames, involves a distorted explanation of 
the case, and the contradiction of the unanimous opinion 
in Smith v. Reeves, written by himself, that a State may 
restrict its consent to be sued to its own courts. 

A number of cases in which States have provided for 
suits against themselves have come up to the supreme court 
on writs of error from the highest State courts.* In all 

iSee below, Part II, Chap. VIII. 

2 180 U. S. 28. 

3 209 U. S. 123. 

<Curran v. Arkansas, 15 How. 304; Beers v. Arkansas, 20 How.. 
527; M. & C. R.R. Co. V. Tenn., loi U. S. 337; So. & North. Ala. 
R.R. Co. V. Ala., loi U. S. 832; Hall v. Wise, 103 U. S. 5- 



32 The Non-Suability of the State. 

such cases, it is taken for granted that the consent of the 
State has waived the question of jurisdiction. So far as 
I have been able to discover, however, none of these 
cases was brought by a citizen of another State ; so that the 
eleventh amendment did not directly apply, and the atti- 
tude of the court was entirely proper. Justice Harlan, in 
General Oil Company v. Crain,^ stated that " it was long 
ago settled that a writ of error to review the final judg- 
ment of a State court ... is not a suit within the meaning 
of the eleventh amendment. Cohens v. Virginia, 6 Wheat. 
264." Now, Cohens v. Virginia decided no such thing. It 
decided simply that a proceeding on writ of error is merely 
a continuation of the case below. In Cohens v. Virginia, 
the suit was brought not against the State, but by the State, 
so that the eleventh amendment could not apply; and the 
character of the suit was not changed by the writ of error. 
This very reasoning would bar from the federal courts a 
suit that is in its origin a suit against the State by a citizen 
of another State, just as much on writ of error as by origi- 
nal suit. 

In Clark v. Barnard,^ a railroad company gave to the 
State of Rhode Island a bond for $100,000, conditioned on 
completing a portion of road within a certain time. As 
security, the railroad company loaned $100,000 to the city 
of Boston, for which the latter gave its note to the treasurer 
of Rhode Island. The road becoming insolvent, after the 
time named in the bond, the receiver brought suit in the 
United States circuit court, on the ground of diverse citi- 
zenship, against the treasurer of Rhode Island and the city 
of Boston, alleging that the bond was invalid, for a decree 
ordering the treasurer to give back the note of the city of 
Boston, and enjoining him from receiving the money and 
the city from paying it over, and for the restoration of the 
money to the railroad. The treasurer demurred on the 
ground that it was in effect a suit against the State ; but the 
demurrer was overruled. The court required the city of 

1 209 U. S. 211. 

2 108 U. S. 436. 



Principles of Constitution Governing Suits. 33 

Boston to pay the $100,000 into court, with leave to the State 
to prove any damages it might have sustained on account of 
the breach of the condition of the bond. The State then 
became a party claimant to the fund, "without prejudice to 
the demurrer of the treasurer." The State proved no dam- 
ages, and the funds were awarded to the railroad. On 
appeal, the supreme court held the State entitled to the 
funds, on the ground that the bond became forfeited on 
breach of the condition, without proof of damages. 

What is in point here is the ruling on the question of suit 
against the State. Justice Matthews, speaking for the court, 
said : " We are relieved, however, from its cotisideration, 
by the voluntary appearance of the State in intervening as 
a claimant of the funds in court. The immunity from suit 
belonging to a State, which is respected and protected by 
the constitution within the limits of the judicial power of 
the United States, is a personal privilege, which it may 
waive at pleasure ; so that in a suit, otherwise well brought, 
in which a State had sufficient interest to entitle it to become 
a party defendant, its appearance in a court of the United 
States would be a voluntary submission to its jurisdiction. 
... It became an actor as well as defendant." 

Now, if the case could be regarded as a suit by the State, 
it would be all right. But the difficulty is that the State 
could not bring such a suit in the United States circuit court ; 
for the circuit courts have no jursdiction of suits between a 
State and a citizen of another State, unless a federal question 
is involved.^ On the other hand, if the court had jurisdic- 
tion of the original suit, the fact that the State became a 
party would not oust the jurisdiction once attached.^ But 
the court expressly said that it was not necessary to decide 
whether the suit was obnoxious as a suit against the State, 
because the State was a voluntary party. Moreover, al- 
though the circuit court held the original suit was not in 
effect a suit against the State, it is very debatable whether 
the State was not an indispensable party. So that, strictly 

' Postal Tel. Co. v. Ala., 155 U. S. 482. 
'' Phelps V. Oaks, 117 U. S. 236. 



34 The Non-Suability of the State. 

analyzed, the case may be regarded as holding squarely that 
consent of the State sued may confer jurisdiction in a case 
within the terms of the eleventh amendment. If this hold- 
ing is to be explained away, it may, perhaps, best be done on 
the ground that the State became a party plaintiff, and that 
the court overlooked the objection to such a suit by the 
State. 

Not quite so difficult to justify is Gunter v. Atlantic Coast 
Line Railroad Company.^ In Humphrey v. Pegues,^ had 
been sustained a decree of a United States circuit court, 
enjoining certain county treasurers of South Carolina 
from proceeding to collect a tax on a railroad company, de- 
clared unconstitutional as a violation of a contract exemp- 
tion. Twenty-five years later, the State by law directed 
the attorney general to bring suit to recover taxes to be 
assessed for ten years back on railroad property that had 
been off the books. The suit of Gunter v. Atlantic Coast 
Line Railroad Company was brought as ancillary to Hum- 
phrey V. Pegues, to restrain suit under the act for taxes that 
had been declared unconstitutional in that case. The court 
avoided the necessity of deciding whether the new suit by 
itself was open to objection as a suit against the State, by 
holding that Humphrey v. Pegues was an action under a 
State law construed as providing therefor as a form of ac- 
tion against the State, and that, since the State was a party 
bound by the decision in that case, the present action, even 
if a suit against the State, was a proper proceeding to 
enforce that decision. 

That the court was of opinion that consent of a State 
may waive the limitations of the eleventh amendment is 
evident from the statement in the opinion of the court, 
written by Justice White, of the " elementary propositions " ; 
that " In view of the prohibitions of the eleventh amend- 
ment . . . , a State, without its consent, may not be sued by 
an individual in a circuit court of the United States," and 
that " Although a State may not be sued without its consent, 

1200 U. S. 2f72. 
* 16 Wall. 244. 



Principles of Constitution Governing Suits. 35 

such immunity is a privilege which may be waived." This 
decision may, however, readily be sustained on other 
ground: to wit, that Humphrey v. Pegues in its inception 
was clearly a proper suit against the county treasurers as in- 
dividuals, and that, when the defense in accordance with 
the State law made it also a form of action against the 
State, this development did not devest the jurisdiction that 
had already attached.^ 

In view of the peculiar circumstances of Clark v. Barnard 
and of Gunter v. Atlantic Coast Line Railroad Company, 
the question may fairly be regarded as not finally settled. 
It is so clear on principle that consent of a State cannot re- 
move the limitations of the eleventh amendment, that, if 
the question is squarely presented and argued, the court may 
yet so hold. 

Restriction of consent to State courts. 
In Smith v. Reeves,^ it was held, as an exception to the 
general principle that where a suit may be maintained in a 
State court the State cannot prevent resort to the federal 
courts if the requisites for federal jurisdiction are present, 
that a State, in allowing suits against itself, may limit such 
suits to its own courts, to the exclusion of the federal 
courts.=^ This decision is well based on the ground that a 
remedy by an individual against a State is purely a matter 
of grace, subject to stich conditions as the State may choose 
to impose. 

In the same case, however, it was stated by Justice Har- 
lan, in the opinion of the court, that the right of the State 
is "subject always to the condition, arising out of the 
supremacy of the constitution of the United States and the 
laws made in pursuance thereof, that the final judgment of 
the highest court of the State, in any action brought against 

* Phelps V. Oaks, 117 U. S. 236. 

' 178 U. S. 436. . ., • . c. * 

* Under the view urged in the last section, a suit against a btate 
within the prohibition of the eleventh amendment is without the 
jurisdiction of the federal courts, even with the consent of the 
State. 



36 The Non-Suability of the State. 

it with its consent, may be reviewed or reexamined, as pre- 
scribed by the act of congress, if it denies to the plaintiff 
any right, title, privilege, or immunity secured to him and 
specially claimed under the constitution or laws of the 
United States." Justice Holmes, also, in Chandler v. Dix,^ 
said : " Of course, a taxpayer denied rights secured to him 
by the constitution and laws of the United States, and 
specially set up by him, could bring the case here by writ of 
error from the highest court of the State." The point has 
not, however, been decided. With due respect for the dicta 
of the learned justices, I can see no reason whatever why, 
if the grant of a remedy against itself is a matter of grace 
on the part of the State, it may not exclude the jurisdiction 
of the supreme court just as well as of the circuit courts of 
the United States, 

Withdrawal of consent and impairment of the obligation 
of contracts. 

In Memphis and Charleston Railroad Company v. Ten- 
nessee,^ the principle that an impairment of the remedy is an 
unconstitutional impairment of the obligation of the con- 
tract was invoked against the State. The supreme court 
held, however, that, since the remedy withdrawn had con- 
ferred on the State court no power to execute the judgment, 
which remained dependent on an appropriation by the 
legislature, it was not such an effective judicial remedy as 
to come within the principle.^ 

In the earlier case of Beers v. Arkansas,* it had been held 
that a general law allowing suits against the State did not 
become part of a contract. And this was necessarily the 
view of the four justices concurring in the opinion written 
by Justice Matthews in Antoni v. Greenhow,^ and of the 
four dissenting justices in Poindexter v. Greenhow,^ where 

1 194 U. S. 590. 

2 loi U. S. 337- 

8 Reaffirmed in So. & No. Ala. R.R. Co. v. Ala., loi U. S. 832. 

<20 How. 527. 

6 107 U. S. 769. 

«ii4 U. S. 270. 



Principles of Constitution Governing Suits. 37 

the remedy was judicially effective.^ This position is justi- 
fied on the ground that the remedy given is purely a matter 
of grace. 

It is different, however, where an effective remedy is 
in terms made part of a contract. Suppose, for instance, a 
State issued bonds containing a mortgage of certain prop- 
erty,^ and granting to the bondholders the right to sue for 
the enforcement of the mortgage. It would seem clear that 
the withdrawal of this right would be an unconstitutional 
impairment of the obligation of the contract, and that a 
federal court having jurisdiction ought to disregard the 
withdrawal and enforce the remedy. Yet, in Antoni v. 
Greenhow, it was evidently the opinion of Justice Matthews 
and the three justices concurring with him, that a State may 
withdraw a remedy against itself, even if it impairs the 
obligation of a contract. It was squarely stated by Justice 
Matthews in Ex parte Ayers.^ Such is, also, the logic of 
the decision in Louisiana v. Jumel.* In my view, this is 
clearly wrong. 

iThe decisions in these cases did not involve a denial of this 
position. 
* As in South Dakota v. N. Car., 192 U. S. 286. 
»I23 U. S. 443. 
*I07 U. S. 711. See Part II, p. 71. 



CHAPTER IV. 

Scope of the Doctrine of Non-suability — Forms of 
Action. 

Actions that are suits against the state. 

The principle of immunity is not limited to any particular 
forms of action. It extends to actions in rem, as, for ex- 
ample, to enforce a lien against property of the state,^ or 
foreign attachment against such property,^ as well as to 
actions in personam. It prevents the attachment of funds 
in the hands of officers of the United States, due as wages 
to seamen, by creditors of the seamen.^ 

In the case of admiralty proceedings in rem, it is true, 
there has been some disposition to regard the exemption of 
government property as due, not to the immunity of the 
government from suit, but to the exemption from liens of 
certain classes of property of a public or religious char- 
acter, and to restrict the exemption of government property 
to what is used for a public governmental purpose. This 
question, however, has been sufficiently discussed above ;^ 
where is set out the better view that an admiralty proceed- 
ing in rem is simply a form of suit against the owner of 
the res. 

In "The Davis,"^ the principle of exemption of all prop- 
erty of the government was recognized without exception. 
The court was, however, led astray by United States v. 
Wilder,® and by placing a false emphasis on the fact of 
possession. In United States v. Wilder, the United States 

*The great leading case is Briggs v. Light-boats, ii Allen 157. 
"Nathan v. Va., i Dall. 77. (Common Pleas, Phila. Co., Pa.) 
* Buchanan v. Alexander, 4 How. 20. 

*P. 13- 

" ID Wall. IS. 

'3 Sumner 308. 

38 



Scope of the Doctrine of Non-Suability. 39 

brought suit in trover for certain clothing, property of the 
United States, which was being held by a carrier for a lien 
for general average. Justice Story held that, where it was 
necessary for the United States to bring suit to recover the 
goods, the carrier might assert against the United States 
his right to retain the goods for the lien. In " The Davis," 
a cargo of cotton belonging to the United States became 
liable to a lien for salvage. It remained in the possession 
of the carrier, and was libelled along with the ship by the 
salvors. The supreme court held that the exemption of 
government property exists only where it would be neces- 
sary to take the property out of the possession of agents 
of the government, and that, since " The United States, 
without any violation of law by the marshal, was reduced 
to the necessity of becoming claimant and actor in the court 
to assert her claim to the cotton," under these circumstances, 
" it was the duty of the court to enforce the lien of the 
libellants for the salvage, before it restored the cotton to 
the custody of the officers of the government." 

Now, the decision in United States v. Wilder, that one in 
possession of property of the government may assert his 
rights with respect thereto, was clearly correct. But one 
mode of asserting such rights, namely, by suit, is precluded 
by the immunity of the state from suit. Whether the gov- 
ernment has possession or not certainly does not make the 
action more or less a suit against the state. In Young v. 
Steamship Scotia,^ the judicial committee of the privy 
council flatly said, although obiter, that " the question of 
possession is immaterial." The decision, but not the opinion 
delivered by Justice Miller, in The Davis, may be sustained 
on the ground that the United States did not merely object 
to the libel, but became an active claimant of the goods ; and 
that its claim was subject to the liens of other parties. - 

The immunity of the state precludes not only suits directly 
against the state, but also suits, otherwise well brought be- 
tween proper parties, towards which the state stands in such 

189 L. T. 374. 

* See below, p. 42. 



40 The Non-Suability of the State. 

a relation as to be an indispensable party. There is a class 
of parties, called necessary parties, who ordinarily must be 
joined to a suit, but who, if to join them would defeat 
jurisdiction, may be dispensed with. Such is the position 
of joint makers of a promissory note. On the other hand, 
there are " persons who not only have an interest in the con- 
troversy, but an interest of such a nature that a final decree 
cannot be made without affecting that interest or leaving 
the controversy in such a condition that its final disposition 
may be wholly inconsistent with equity and good con- 
science."^ These are indispensable parties, without whom 
the court will not proceed with the case. 

In Cunningham v. Macon and Brunswick Railroad Com- 
pany,2 it was held that where the State was the holder of the 
legal title under a deed of trust to secure it on its endorse- 
ment of the bonds of a railroad company, it was an indis- 
pensable party to a suit against the railroad company to 
foreclose the mortgage of one issue of bonds. 

In Christian v. Atlantic and North Carolina Railroad 
Company,^ a bill was brought against a railroad company 
to have certain shares of stock owned by the State, and 
dividends thereon, applied to State bonds issued in aid of 
the railroad, for which the State had pledged the stock. 
The bill was dismissed on the ground that the State was an 
indispensable party.* 

A state may be a party to a suit not only in its own name, 
but also under other forms. Thus, in Smith v. Reeves,^ the 
State had allowed suit against itself in the form of an action 
against the State treasurer. In Gunter v. Atlantic Coast 

^Shield V. Barrow, 17 How. 130; quoted in Cunningham v. M. & 
B. R.R. CO. The doctrine of parties is best developed in the class 
of cases in which jurisdiction of the federal courts is dependent on 
diverse citizenship. 

^109 U. S. 446. 

* 133 U. S. 233. 

* In Case v. Terrell, il Wall. 199, also, although the ground of dis- 
missal was stated to be simply that the only substantial relief was 
against the United States, with respect to the decree against en- 
forcement of the priority of the United States in the distribution of 
assets, the United States was in the position of indispensable party. 

" 178 U. S. 436. 



Scope of the Doctrine of Non-Suability. 41 

Line Railroad Company/ it was held that Humphrey v. 
Pegues=^ was a form of action the State had allowed against 
itself. And, in Minnesota v. Hitchcock,^ jurisdiction of a 
suit against the secretary of the interior was sustained on 
the ground that it was a suit against the United States with 
its consent. 

The court seems to have overlooked this obvious fact 
in Missouri, Kansas and Texas Railroad Company v. Mis- 
souri Railroad and Warehouse Commission.* In that case, 
a petition for removal to the federal court, on the ground of 
diverse citizenship, of an action brought under a statute by 
the State railroad and warehouse commissioners for an in- 
junction to compel obedience to an order, was denied by the 
State court on the ground that it was a suit by the State; 
the decision was reversed on writ of error by the supreme 
court. The court was evidently under the influence of 
Justice Brewer's queer idea that the governmental interest of 
a state in the enforcement of its laws is not such an interest 
as to make it a party to a suit.^ This idea was evolved to 
meet a conceived necessity of explaining a case like Reagan 
v. Farmers Loan and Trust Company, to enjoin suits to 
enforce rates, as not a suit against the State. But the 
proper explanation of such a case is not that the State 
has not sufficient interest to be a party ,^ but that, despite 
such interest, the agents of a State may be restrained 
from violating constitutional rights.^ The idea of Justice 
Brewer is negatived by the everyday fact of criminal 
proceedings by the state to enforce its laws, and especially 
by such cases as In Re Debs,* in which the state brings 
suit in equity to enforce its governmental rights and 

1200 U. S. 273. 

»i6 Wall. 244. 

»i85 U. S. 373. 

M83 U. S. 53. 

' Previously expressed by him in Reagan v. Farmers L. & T. Co., 
154 U. S. 362. 

«For in Gunter v. Atl. Coast Line R.R. Co., 200 U. S. 273, the 
court held that the State was a party to a similar case— Humphrey 
V. Pegiies, 16 Wall. 244. 

^Part II, Chaps. V, VI. 

•158 U. S. 564. 



42 The Non-Suability of the State. 

duties. In the very case in hand, Justice Brewer recog- 
nized that such a case as Ferguson v. Ross/ in which suit 
to recover a penalty was brought, as provided by law, in the 
name of a State shore inspector, was a suit by the State. 
His distinction is that in a suit to recover a penalty, the 
judgment inures to the benefit of the State, whereas in a 
suit to enforce an order, the State has no pecuniary interest, 
but only the shippers. The idea that the penalty recovered 
is the interest that sustains a prosecution by the state be- 
comes absurd when the penalty is not money, but imprison- 
ment. The only proper question in the case in hand was 
whether the suit was a form of action by the State ; and that 
was concluded by the decision of the State courts. The 
supreme court was led into this error by the fact that the 
apparent parties were the same as they would have been in 
a suit against the commissioners to restrain the enforcement 
of an order, and that such a suit would not be a suit against 
the State. 

Actions that are 'not suits against the state. 

It was early settled that the fact that the state is a stock- 
holder, even the sole stockholder, in a corporation, does not 
relieve the corporation from suit.- The corporation is a 
personality of private law, distinct from its stockholders. 

It is equally well settled that, when the state brings suit, 
the defendant may carry the case up by appeal or on writ 
of error. Such proceeding is but a continuation of the case, 
and does not convert it into a suit against the state.^ 

More important, as affecting the immunity from suit, is 
the doctrine that, when the state comes into court to enforce 
a right, its recovery is subject to the rights of others in the 
subject matter of the suit. Thus, in United States v. Wil- 
der,* an action of trover for property of the United States 
was barred by the right of defendant to retain it for a lien 
for general, average. The principle has its widest scope in 

1 38 Fed. 161. 

2 Bank of U. S. v. Planters' Bank of Ga., 9 Wheat. 904. 
» See the great case of Cohens v. Va., 6 Wheat. 264. 
* 3 Sumner 308. 



Scope of the Doctrine of Non-Suability. 43 

cases in admiralty, where, when the res is brought within 
the jurisdiction of the court, all claims are presentable. 
In "The Siren, "^ the vessel, on libel by the United States, 
had been condemned as prize of war, and the proceeds de- 
posited with the assistant treasurer of the United States, 
subject to the order of the court. It was held that the funds 
were liable to a claim for a lien against the vessel growing 
out of a collision while being brought into port for condem- 
nation.- 

The same principle applies to the right of set-off and 
counterclaim by defendants to suits brought by the state. 
The extent of this right varies, of course, with the rules 
governing the procedure of the court. The right of set-off 
is statutory; and the state may limit the right of set-off 
against itself to cases in which certain conditions have been 
complied with, as, for instance, that the claim shall have 
been previously presented and allowed.^ The general prin- 
ciple is that the right of set-off or counter-claim against the 
state extends to any claim, legal or equitable, that operates 
by way of direct defense to the suit ;* but does not warrant 
a separate claim, or a demand for original and independent 
relief, since that would be in effect a suit against the state.^ 
It is well settled that a judgment cannot be entered against 
the state for a balance on a set-off.® Nor can a judgment 
be entered against the state for costs. ^ 

In United States v. McLemore,^ it was held that, although 
a circuit court of the United States, sitting as a court of 
law, may direct credits to be given on a judgment in favor 
of the United States, and consequently may examine the 
grounds on which such an entry is claimed, aijd may direct 

1 7 Wall. 152. 

2 See also "The St. Jago de Cuba," 9 Wheat. 409; and "Tie 
Davis," 10 Wall. 15. 

' U. S. V. Eckford's Extrs., 6 Wall. 484. 

*U. S. V. McDaniel, 7 Pet. i; U. S. v. Ringgold, 8 Pet. 150; 
Gratiot V. U. S., 15 Pet. 336. 
^ Pres. & Direc. etc. v. Ark., 20 How. 530. 
«Reeside v. Walker, 11 How. 272; U. S. v. Eckford's Extrs. 
'U. S. V. McLemore, 4 How. 286 (cases cited). 
84 How. 286. 



44 ^^^ Non-Suability of the State, 

the execution to be stayed until such an investigation shall 
be made, it cannot entertain a bill on its equity side to enjoin 
the United States from proceeding upon such judgment, 
since that is a suit against the United States. In Hill v. 
United States,^ the doctrine is reaffirmed that execution 
upon a judgment in favor of the United States may not 
be enjoined. In Bouldin v. State,^ on the contrary, it 
was held that such a suit to restrain execution, upon the 
ground that the bond on which the judgment was obtained 
was executed without consideration, is not a suit against 
the State, but simply setting up a defense that might have 
been availed of in the original suit.^ 

19 How. 386. 

2 21 Ark. 84. 

' In the United States, it is agreed, consent to suit against the 
state can be given only by the legislature ; the executive does not 
possess the prerogative of the crown in this respect. U. S. v. Lee, 
106 U. S. 196; Stanley v. Schwalby, 162 U. S. 255; Case v. Terrell, 
II Wall. 199; Carr v. U. S., 98 U. S. 433. 

In case of consent, the state has full control over the proceedings. 
De Groot v. U. S., 5 Wall. 419; Beers v. Arkansas, 20 How. 527. 
Possible exception as to the substantive law — see U. S. v. Klein, 13 
Wall. 128. 



PART II. 

SUITS AGAINST PUBLIC OFFICERS. 



CHAPTER I. 
The Principle of Liability in Tort. 

The first part of this study has dealt with the doctrine of 
non-suability of the state, and the extent to which it applies 
to the States of the United States. In the last chapter, has 
been set out the scope of the doctrine — what forms of action 
are suits against the state, and what proceedings, though 
affording judicial remedy against the state, are not within 
the prohibition. In this second part, will be considered 
suits against public officers, in relation to the immunity of 
the state from suit. 

It was early settled in English law that, although the 
crown may not be sued for torts done by public officers, 
the actors themselves may be held liable, and that it is no 
defense to set up an unlawful authority from the crown. 
An act of parliament is, of course, always lawful authority. 
But where a statute may be held unconstitutional, as in the 
United States, it furnishes no better defense than the unlaw- 
ful order of a higher executive officer. 

The lack of valid defense in an unlawful authority from 
the crown has been rested upon the maxim that " the king 
can do no wrong." To authorize a wrong, it is said, is to 
do a wrong; hence, in the eye of the law, the alleged author- 
ity cannot exist. This maxim must mean one of two things. 
First, that whatever the king does is right ; with the neces- 
sary corollary that whatever the king authorizes is right. 
Practically, this was, no doubt, for a time in large measure 
true; and the king's servants acting as judges made no 
pretense of exercising jurisdiction over the king's servants 

4 45 



46 The Non-Suability of the State. 

acting for him in other ways. But the doctrine of absolu- 
tion was soon definitely negatived. Second, that no wrong 
will be imputed to the king. In this view, it is a senseless 
fiction. A more rational explanation is that, although the 
king may do wrong, he is protected by his immunity from 
suit. If he does wrong through an agent, the agent is liable, 
although the king is not. 

The state, of course, can act only through agents. The 
agent, in committing a tort, may be regarded either as not 
acting for the state, in which view the agent alone would be 
liable, or as acting, although unlawfully, for the state, in 
which view both principal and agent would be liable, al- 
though the principal would be protected by the immunity 
of the state from suit. In either view, the liability of the 
agent results from the fact that his act is in itself unlawful, 
and doesnot rest upon lawful state authority. Such author- 
ity cannot exist if forbidden by a higher authority. Thus, 
a statute cannot afford lawful authority if contrary to the 
constitution. 



CHAPTER II. 

Injunction Against Tort, 

In the great case of Osborn v. Bank of United States,* was 
presented the question whether a public officer, about to 
commit a tort under a statute alleged to be unconstitutional, 
may be enjoined therefrom if equitable ground exists. An 
act of Ohio imposed a tax of $50,000 a year on each branch 
of the Bank of the United States situate in Ohio, and in- 
structed the State auditor to issue his warrant for distraint 
therefor in case of failure to pay. The bank brought suit 
in the United States circuit court to enjoin the auditor 
from proceeding to collect the tax, upon the ground that it 
was unconstitutional — as it was, in fact, held in this case. 
The part of the decision of the supreme court in point here 
is the affirmance of the decree granting this injunction. 

The remedy of injunction against public officers had been 
used in England, though very sparingly .^ Chief Justice 
Marshall, however, as usual, cited no precedents. 

One contention of appellants was that, admitting that in 
an action for damages the statute would be no justification 
if found unconstitutional, but that the State officers must 
be treated as individual trespassers, yet there existed no 
ground for equitable relief. Chief Justice Marshall answered 
thus : " The appellants treat the declaration of Osborn, the 
auditor, that he should execute the law, as the light and 
frivolous threats of an individual that he would commit an 
ordinary trespass. But surely this is not the point of view 
in which the application for an injunction is to be con- 
sidered. The legislature of Ohio had passed a law for the 
avowed purpose of expelling the bank from the State; and 
had made it the duty of the auditor to execute it as a minis- 

*9 Wheat. 738. 

' Goodnow : Admin. Law of the U. S., p. 420 et seq. 

47 



48 The Non-Suability of the State. 

terial officer. He had declared that he would perform this 
duty. The law, if executed, would unquestionably effect 
its object, and would deprive the bank of its chartered privi- 
leges so far as they were to be exercised in the State. ... It 
was to be expected that a person continuing to hold an office 
would perform a duty enjoined by his government, which 
was completely within his power. This duty was to be re- 
peated until the bank should abandon the exercise of its 
chartered rights."^ That is, it was decided, in determining 
whether equitable grounds exist, it will be presumed that an 
officer will perform a duty laid upon him by statute, and 
the nature of the threatened tort will be determined by the 
statute under color of which he is about to act. 

The main argument of appellants was, as stated by Chief 
Justice Marshall, as follows : " The bill is brought, it is said, 
for the purpose of protecting the bank in the exercise of a 
franchise granted by a law of the United States, which 
franchise the State of Ohio asserts a right to invade, and 
is about to invade. It prays the aid of the court to restrain 
the officers of the State from executing the law. It is, then, 
a controversy between the bank and the State of Ohio. The 
interest of the State is direct and immediate, not consequen- 
tial. The process of the court, though not directed against 
the State by name, acts directly upon it, by restraining its 
officers. The process, therefore, is substantially, though 
not in form, against the State, and the court ought not to 
proceed without making the State a party. If this cannot 
be done, the court cannot take jurisdiction of the cause. "^ 

Opinions in similar cases have often put the ruling that 
the suits were not against the State upon the ground that an 
officer, when acting under an unconstitutional statute, is not 
acting for the State, and the State has no interest. But it 
requires the exercise of jurisdiction to find the statute un- 
constitutional ; and if it is found valid, then it follows, upon 
this view, that the court has exercised jurisdiction over a 
suit against the State. Anyhow, the State clearly has an 

^P. 839. 
2 P. 846. 



Injunction Against Tort. 49 

interest in determining whether the statute under which its 
officers are acting is unconstitutional. This is proved by the 
fact that the State may join as party defendant in such a 
case.^ Chief Justice Marshall did not deny the interest of 
the State : " The full force of this argument is felt, and the 
difficulties it presents are acknowledged. The direct inter- 
est of the State in the suit, as brought, is admitted ; and, had 
it been in the power of the bank to make it a party, perhaps 
no decree ought to have been pronounced in the cause until 
the State was before the court."^ " But," he said, " if the 
person who is the real principal, the person who is the 
true source of the mischief, by whose power and for whose 
advantage it is done, be himself above the law, be exempt 
from judicial process, it would be subversive of the best 
established principles to say that the law could not afford 
the same remedies against an agent employed in doing the 
wrong, which they would afford against him could his 
principal be joined in the suit." The action against the 
officers was upheld on the ground of the personal and 
separate liability of an agent for his tort, though done for a 
principal. " It being admitted, then, that the agent is not 
privileged by his connection with his principal, that he is 
responsible for his own act to the full extent of the injury, 
why should not the preventive power of the court also be 
applied to him?" 

The doctrine of Osborn v. Bank has not since been ques- 
tioned. In Dodge v. Woolsey,^ a similar case, the objection 
of suit against the State was not raised. And, in Poin- 
dexter v. Greenhow,* Justice Matthews, speaking for the 
court, said of enjoining the collection by State officers of un- 
constitutional taxes : " The practice has become common, and 
is well settled on uncontrovertible principles of equity pro- 
cedure."^ Certainly, if Osborn v. Bank had been decided 

1 In Gunter v. Atl. C. L. R.R. Co., 200 U. S. 273, the State was 
held to have become a party to the original suit. 
» P. 846. 
3 18 How. 331. 
«'ii4 U. S. 270. 
' The four dissenting justices did not deny this, but considered 



50 The Non-Suability of the State. 

differently, constitutional limitations would have been dead 
letters. The doctrine that a public officer may be restrained, 
in a proper case in equity, from committing a tort under 
color of an unlawful authority, has, so far as I know, 
never been denied by a State court. Objection was made 
in Osborn v. Bank, probably, not so much in denial of 
this general doctrine, but from a failure to appreciate fully 
that the constitution of the United States operates upon 
State enactments just as a State constitution operates upon 
State statutes. It was a period of general protest against the 
growing national supremacy over the States. 

The decision in Osborn v. Bank was clearly right. To 
enjoin state officials does affect the state more closely than 
to hold them liable in damages. The state cannot itself 
act, as can the king; and, if every agent is restrained, the 
state cannot act at all. But this intrinsic limitation of the 
state should not affect the remedy against its agents. The 
principle is that every person is liable for his own torts, 
even though acting as agent. If a public officer would be 
liable in damages for an act, there is no reason why, if 
equitable grounds exist, he should not be enjoined from 
the act. 

The only case in which the supreme court has departed 
from this doctrine is Belknap v. Schild.^ In that case, a 

that, the taxes being valid, the right to have the coupons received 
therefor was merely a right of set-off, and that any suit to restrain 
the collection of the taxes was in effect a suit to compel the State to 
fulfil the contract to receive the coupons for taxes. Later, in Mc- 
Gahey v. Va., 135 U. S. 662, Justice Bradley, who delivered the dis- 
senting opinion in Poindexter v. Greenhow, admitted that the view 
of the majority was probably correct — that the tender of the coupons 
worked a defeasance of the taxes, so that the collection of them 
thereafter was a tort, just as if they were unconstitutional in the 
first place. Congress, in the exercise of its control over remedies in 
the federal courts, has provided that the remedy of injunction shall 
not be used to restrain the collection of unconstitutional federal 
taxes. Of course, congress cannot remove the liability of the 
officers, but it seems it can control the remedy, to the extent at least 
of confining the injured party to his remedy at law. State legisla- 
tion cannot, of course, affect the power of the federal courts in the 
administration of their regular equitable remedies. In re Tyler, 149 
U. S. 164. 
^ 161 U. S. ID. 



Injunction Against Tort. 5^ 

bill in equity was brought by the owner of a patent against 
officers of the United States, in charge for the United States 
of a caisson gate, the property of the United States, made 
in infringement of the patent, and used in a dry dock at a 
navy-yard of the United States. The court recognized 
that the officers would be liable in damages; but held that 
no injunction could issue, since that would prevent the use 
by the United States of its own property, in its possession.^ 
Justice Gray, delivering the opinion of the court, said: 
" The United States, then, had both the title and the posses- 
sion of the property. The United States could not hold or 
use it except through officers and agents. Although this 
suit was not brought against the United States by name, but 
against their officers and agents only, nevertheless, so far as 
the bill prayed for an injunction, and for the destruction of 
the gate in question, the defendants had no individual inter- 
est in the controversy; the entire interest adverse to the 
plaintiff was the interest of the United States in property 
of which the United States had both the title and the pos- 
session." This argument, except for the fact that title here 
was undisputed, is exactly the same as in Justice Gray's 
dissenting opinion in United States v. Lee,- and the case 
can only be explained as enforcing his opinion there. It is 
true he distinguished United States v. Lee on the ground 
that title to the land was disputed in that case. But surely 
the United States has as direct an interest in property 
which it holds by a disputed title as by an undisputed title. 
The cases Justice Gray cited as holding that "no injunction 
can be issued against officers of a State to restrain or con- 
trol the use of property in the possession of the State or 
money in its treasury" — Louisiana v. Jumel and Elliot v. 
Wiltz,^ Cunningham v. Macon and Brunswick Railroad 
Company,* Hagood v. Southern^ — were cases of an entirely 

1 Justice Bradley had strongly intimated a similar view in James 
V. Campbell, 104 U. S. 356, although the case had been decided upon 
the ground that the patent was invalid. This dictum was not men- 
tioned in Belknap v. Schild. 

* 106 U. S. 196. 

' 107 U. S. 711. 

< 109 U. S. 446. 

6 117 U. S. 52. 



52 The Non-Suability of the State. 

different nature. They were suits to obtain property of the 
State ; not one of them was to prevent a tort. They clearly 
support the decision, in Belknap v. Schild, that no decree 
for the destruction of the property of the United States 
used in infringement of the patent could be rendered in a 
suit against the officers. Just as clearly, they are not in 
point upon the question of the injunction. 

It seems strange that Belknap v. Schild should have been 
so decided after United States v. Lee. In the latter case, 
ejectment was upheld against officers of the United States, 
in possession of land claimed by the United States, 
on which the United States had valuable improvements used 
in the public service. The case held squarely that a public 
officer may be held liable for a tort, and that the court will 
inquire into the defense — in that case depending on the 
title of the United States. The direct interest of the United 
States did not prevent relief. In Belknap v. Schild, the 
suit was to prevent a tort; the validity of the defense de- 
pended on whether the caisson gate was an infringement 
of the patent. The fact that property of the United States 
was used in committing the tort should not have prevented 
relief. This is established by such a case as Ex parte 
Young,^ in which public officers were enjoined from acts 
not possible to them as individuals, but consisting in using 
their official positions to violate constitutional rights. That 
the United States could use its property only through agents 
was no ground for denying relief against the torts of its 
agents, any more than in United States v. Lee. 

Justices Harlan and Field dissented in Belknap v. Schild, 
Justice Peckham took no part in the decision. In the next 
similar case, Dashiell v. Grosvenor,^ the question was 
evaded by holding that there was no infringement. In 
International Postal Supply Co. v. Bruce,^ Belknap v. 
Schild was reaffirmed, and an injunction denied to restrain 
the postmaster at Syracuse from using, in infringement of 

^ 209 U. S. 123. 
' 162 U. S. 425. 
' 194 U. S. 601. 



Injunction Against Tort. 53 

a patent, stamping-machines, hired by the United States 
postoffice for a term of years. Justice Harlan again dis- 
sented, and Justice Peckham concurred in the dissent. 

In a State case, Hopkins v. Clemson Agricultural College,^ 
the court denied relief, in a suit against the trustees of the 
Clemson Agricultural College, incorporated, an agent of 
the State, against a dike erected on the college grounds so 
as to cause the water to overflow the lands of plaintiff as 
it would not naturally do. The court put the decision 
on the ground that the State was an indispensable party to 
a suit to affect the dike, its property, on its property. But 
any effective relief in this caes would have required a 
decree for the destruction of the dike, which, of course, 
could not be rendered in a suit against the agent of the 
State. In Salem Flouring Mills Co. v. Lord,^ State officers 
were enjoined from using more water from a stream than 
the State was entitled to under a contract by which it 
acquired the right to use a certain amount. The court said 
that the decree could not affect the property of the State. But, 
since the decree enjoined the use of any appliance capable 
of taking more water than proper, and such an appliance 
owned by the State was being used therefor, it seems to 
have enjoined the use of property of the State. The remark 
of the court must be limited, therefore, to mean that the 
property of the State could not be directly acted upon, that 
is, removed, altered, or destroyed. 

The decision in Belknap v. Schild seems unfortunate. 
As Justice Harlan pointed out, it permits any patent capable 
of use in the public service to be used by the government 
at will, thus nullifying, to that extent, the constitutional 
inhibition against taking private property for public use 
without just compensation. It operates to deny preventive 
relief against a wrong in any case in which property of 
the state is used in committing the wrong. In my view, the 
decision is fundamentally wrong. 

1 77 S. C. 12. 
' 42 Ore. 82. 



CHAPTER III. 

Suits to Recover Property in the Possession of 
Public Officers. 

Also growing out of the separate liability of an agent in 
tort, is the right to sue a public officer for the recovery of 
property alleged to be tortiously held by him. The direct 
interest of the state in such a case, in which the defense is 
claim of title in the state, is evident. But Osborn v. Bank 
had established that, where a right of action exists against 
a public officer, it is not barred by the fact that it directly 
affects the state. 

In Osborn v. Bank, Chief Justice Marshall said that he 
could perceive no line of distinction, where a public officer 
was guilty of a trespass under color of an unconstitutional 
tax, between an action for damages and an action of detinue 
for recovery of specific articles taken in collection of the 
tax. Poindexter v. Greenhow^ was an action of detinue. 

The case of Governor of Georgia v. Madrazo^ was as 
follows. In 1817, a cargo of slaves belonging to Madrazo 
was seized by a privateer, and sold to Bowen by decree of 
a court not recognized as competent by the United States. 
While being transported through the Floridas, the slaves 
were brought within the limits of the State of Georgia, and 
were seized by a revenue officer under an act of congress 
annuling the title of any importer of slaves. As provided 
by the act, the slaves were turned over to the governor of 
the State. Part of them were sold by him, and the money 
deposited in the State treasury. Madrazo, claiming that 
the slaves were his, and that he was not responsible for 
their importation into Georgia, brought a libel in the United 
States district court against the governor of Georgia for 



^114 U. S. 270. 
'i Pet. no. 



54 



Suits to Recover Property. 55 

the slaves remaining in his possession and for the proceeds 
from the sale of the rest. Chief Justice Marshall plainly 
regarded the action as a form of suit against the State; 
and, since the libel was to reach moneys in the treasury, of 
which the governor had not even possession, it is probable 
that the service on him was intended as servcie on the State, 
on the theory, as adopted by Justice Johnson in his dissent- 
ing opinion, that the eleventh amendment does not apply 
to suits in admiralty. But even if the governor could be 
considered as a defendant in his personal character, Chief 
Justice Marshall said, no case was made out against him 
personally. The slaves had come into his possession in 
perfectly lawful manner. The action, therefore, was not 
against him for wrongful possession, but rather in the 
nature of a suit to enforce an equitable claim to the slaves. 
Since the governor had no pei"sonal interest in the slaves, 
the claim was not against him. Consequently, the right of 
action was not against him. 

In United States v. Peters,^ was involved the validity of 
a decree of a United States district court. Certain Ameri- 
cans, Olmstead et al., captured by the British during the 
war of revolution, rose and captured the vessel on which 
they were put to service. While on the way to port, the 
vessel was taken in charge by a ship-of-war of the State of 
PennsyVania. The court of admiralty of Pennsylvania, 
in condemning the vessel as prize of war, decreed only one- 
fourth to Olmstead et al., and the rest to the State. On 
appeal, the court of appeals for prize cases, set up by the 
continental congress, decreed all to Olmstead et al. The 
Pennsylvania court refused to accept the decree, on the 
ground that it involved a review of facts found by a jury, 
and decreed sale and distribution. The marshal, despite an 
injunction from the court of appeals, turned over the 
share of Pennsylvania to Rittenhouse, the State treasurer, 
who gave a bond of indemnity therefor to the judge of the 
admiralty court. Rittenhouse, and, on his death, his execu- 
trices, held the funds separate, refusing to deliver them 

*5 Cranch 115. 



56 The Non-Suability of the State. 

to the State until released from the bond to the admiralty- 
judge. In 1803, the United States district court, in a suit 
in admiralty by the successors to the rights of Olmstead 
et al. against the executrices of Rittenhouse, decreed that 
the funds be delivered up to the libellants. It was strongly 
urged that the decree was invalid on account of the claim 
of the State. But Chief Justice Marshall said : " The State 
cannot be made a defendant to a suit brought by an indi- 
vidual, but it remains the duty of the courts of the United 
States to decide all cases brought before them by citizens 
of one State against citizens of a different State, where a 
State is not necessarily a defendant. ... It can never be 
alleged that a mere suggestion of title in a State to property, 
in possession of an individual, must arrest the proceedings 
of the court, and prevent their examining the validity of 
the title." 

Justice Gray, in United States v. Lee, limited United 
States V. Peters by the fact that the funds were in the 
possession of the libellees in their private capacity. " The 
chief justice," he said, "carefully avoided expressing an 
opinion upon a case in which the money sued for was in 
the possession of the State." It is true Chief Justice Mar- 
shall did advert to the fact that the funds were held in a 
private capacity. And he also said in the course of the 
opinion : " If these proceeds had been the actual property 
of Pennsylvania, however wrongfully acquired, the dis- 
closure of the fact would have presented a case on which 
it is unnecessary to give an opinion." It is difficult to 
understand just what the chief justice meant by this. But, 
in view of the fact that he plainly said that the State could 
not acquire title, on account of the decree of the court of 
appeals, and declared, "the full right was immediately in- 
vested in the claimants, who might rightfully pursue it into 
whosesoever hands it might come," the statement of Justice 
Gray finds little support. There seems, indeed, no dis- 
tinction in principle between a case of wrongful possession 
by a public officer of property claimed by the state, and 



Suits to Recover Property. 57 

wrongful possession in a private capacity of like property. 
The basis of the action in either case is the wrongful pos- 
session by the person sued; the defense in either case 
depends upon the title of the state. 

If actions at law may be maintained for the recovery of 
property wrongfully in the possession of public officers, 
then it naturally follows that, if equitable grounds exist, 
equitable rehef may be had in such cases. In Osborn v. 
Bank, if the original injunction against the collection of the 
tax was proper, then of course the decree for restitution 
was simply an enforcement of the original decree. But 
Chief Justice Marshall also held that, even if the original 
injunction was improper, the injunction upon the amended 
bill, enjoining the officers from disposing of the funds, and 
decreeing restitution, was sustainable. The equitable 
ground was that, if the funds were disposed of, they would 
be irretrievably lost to the plaintiffs, because the State could 
not be sued. 

Chief Justice Waite, in Louisiana v. Jumel,^ explained 
away the decree for restitution in Osborn v. Bank thus : 
" Under the state of facts, the order for its return involved 
no question of power to interfere with what was actually in 
the treasury. . . . The money was kept out of the treas- 
ury, because if it got in it would be irretrievably lost to the 
bank, since the State could not be sued to recover it back." 
But the funds had actually been covered into the treasury, 
where they were kept separate by the treasurer; the decree 
ordered the treasurer to restore them. The explanation by 
Justice Miller, in Cunningham v. Macon and Brunswick 
Railroad Company,^ is better: "a preliminary injunction of 
the court, forbidding the State officer from placing the 
money of the bank, which he had seized, in the treasury 
of the State, having been disregarded, the final decree cor- 
rected the violation, by requiring the restoration of the 
money thus removed." Certainly, there is no reason why 
property may not be recovered, on the ground of wrongful 



'107 U. S. 711. 
' 109 U. S. 446. 



58 The Non-Suability of the State. 

possession, if held by the treasurer in the treasury of the 
State, just as if held by any other officer of the State. Of 
course, if the money had not been kept separate, but had 
become mingled with the other moneys in the treasury, 
it would probably have been no longer traceable on the 
ground of wrongful possession. So that Chief Justice 
Waite was right in saying that ''no one pretended that if 
the money had been actually paid into the treasury, and 
had become mixed with the other money there, it could 
have been got back from the State by a suit against the 
ofhcers."^ In such case, probably the only right of action, 
aside from suits for damages against the officers, would 
have been on an implied contract against the beneficiary 
of the money. Such right of action would be against the 
State, and not, of course, against the treasurer. As Chief 
Justice Waite continued : " Certainly no one would ever 
suppose that by a proceeding against the officers alone, they 
could be held as trustees for the bank, and required to set 
apart from the moneys in the treasury an amount equal to 
that which had been improperly put there, and hold it for 
the discharge of the liability which the State incurred by 
reason of the unlawful exaction." 

The need which Chief Justice Waite seems to have felt, 
in Louisiana v. Jumel, of explaining Osborn v. Bank as not 
taking money out of the treasury, was not real. Louisiana 
V. Jumel was an entirely different case. The action was 
not based on the wrongful possession of property belonging 
to the plaintiffs, but was to recover money which the State 
owed to the plaintiffs. Plainly, when the State is bound to 
individuals for money, either by contract or trust, the right 
of action is against the State alone, and not against the 
officers in possession of the money. And this is so, whether 
the money or other property is in the treasury, in the pos- 
session of the treasurer, or is in the hands of other officers, 
entirely separate from the treasury, as in the case of Murray 

1 For similar opinion, see Mich. State Bank v. Hammond, I Doug. 
(Mich.) 527. 



Suits to Recover Property. 59 

V. Wilson Distilling Company.^ The same is true of the 
attempt to enforce a lien against property of the State. The 
right of action is against the State, not against the officers 
in possession.^ 

A case in a State court, Lowry v. Thompson,^ is difficult 
to reconcile. A contract had been made with the land com- 
missioner for the sale of a piece of land to the State of 
South Carolina. The title deed was placed in the hands of 
a third party, to be delivered to the land commissioner upon 
payment of the balance of the purchase money. The land 
commissioner wrongfully obtained possession of the deed. 
The officer of land commissioner was later abolished, and 
the effects of the office and the State lands were put into the 
custody of the secretary of state, under the commissioners 
of the sinking fund. Suit for the recovery of the deed was 
brought against the commissioners of the sinking fund, the 
secretary of state not being made a party, because holding 
under the commissioners. The court, by two to one, held 
that the suit could not be maintained, on the ground that 
the State was an indispensable party to a suit to recover 
property in its possession. The court urged, it is true, the 
point that the law provided for control of the commissioners 
over the secretary of state so far only as he had custody of 
property of the State. But it is fairly clear from the opin- 
ion that the same ruling would have been made in a similar 
suit against the secretary of state. If so, the decision seems 
clearly wrong; because the action was for the recovery of 
property in the wrongful possession of the officers sued. 

The great case of United States v. Lee* will be given a 
full exposition, not because it added to the principle set out 
in this chapter, but because of the careful study and able 
presentation, both in the opinion of Justice Miller for the 
five majority justices, and in the opinion of Justice Gray 
for the four dissenting justices. The case was a suit in 



1213 U. S. 151. 

» Christian v. A. & N. C. R.R. Co., 133 U. S. 233. 

» 25 S. C. 416. 

* 106 U. S. 196. 



6o The Non-Suability of the State. 

ejectment against Kaufman and Strong, officers of the 
United States, in charge of the Arhngton estate, the estate 
of General Robert E. Lee, which had been bid in by the 
United States at tax sale, and was being used for a soldiers' 
cemetery, fort and arsenal. The allegation was that the 
tax sale, and, therefore, the title of the United States, was 
invalid, as was, in fact, decided in this case. The main 
question was whether the suit was barred by the interest 
of the United States in the property. The answer depended 
upon: (i) precedent; (2) principle, (3) public policy. 

"The English authorities, from the earliest to the latest 
times, show," declared Justice Gray, " that no action can 
be maintained to recover the title or possession of land held 
by the crown by its officers or agents, and leave no doubt 
that in a case like the one before us, the proceedings would 
be stayed at the suggestion of the attorney general in be- 
half of the crown." Justice Miller passed by the Enghsh 
authorities, saying that little weight could be given them for 
two reasons : the existence of an effective remedy by peti- 
tion of right in England; and the great reverence for the 
crown, which would make the disturbance of the possession 
of the crown a shocking matter. 

Justice Miller then proceeded to the precedents in the 
supreme court itself. He relied strongly on the language 
of Chief Justice Marshall in United States v. Peters, that 
" it certainly can never be alleged that a mere suggestion 
of title in a State to property in the possession of an indi- 
vidual must arrest the proceedings of the court, and prevent 
their looking into the suggestion and examining the validity 
of the title"; and on the decision in Osborn v. Bank, with 
the repetition of this statement from United Sttaes v. 
Peters. 

Justice Gray did not succeed satisfactorily in his attempt 
to explain away these cases.^ To offset them, he cited 
" The Exchange."^ It is true that in that case the court 
declined to examine the validity of the title set up in de- 

* See above, p. 56. 
"7 Cranch 116. 



Suits to Recover Property. 6i 

fense. But that was a libel of a war-vessel in the regular 
service of the emperor of France, which had come into 
our waters on a friendly visit. Under these circumstances, 
comity required that the judiciary should not interfere with 
the vessel. The case was not mentioned by Justice Miller; 
nor, it seems, has it been considered in point in other cases 
of suits involving property claimed by the state. 

Then there were the four previous cases like United 
States V. Lee. One of them, Meigs v. McClung,^ came 
up between United States v. Peters and Osborn v. Bank. 
Of this case, Justice Gray said : " the full statement of 
their position, in the bill of exceptions, . . . shows that 
the fact that they so held was not set up in defense, 
except as supplemental to the position that the legal title 
was in the United States, and it does not appear to 
have been mentioned in argument. No objection to the 
exercise of jurisdiction was made by the defendants or by 
the United States, or noticed by the court. That the court 
understood the United States to desire a decision upon the 
merits is further apparent from Chief Justice Marshall's 
summary towards the close of the opinion : ' The land is 
certainly the property of the plaintiff below ; and the United 
States cannot have intended to deprive him of it by violence 
without compensation.' Had the decision covered the ques- 
tion of jurisdiction, the Chief Justice would hardly have 
omitted to refer to it in Osborn v. Bank." This last sugges- 
tion is without any weight ; for, in Osborn v. Bank, Chief 
Justice Marshall made no resort to precedent, not even to 
United States v. Peters. The statement, moreover, that the 
interest of the United States was set up only as part of the 
defense of title in the United States, is clearly incorrect. It 
is true that the point was not argued in the supreme court, 
nor mentioned in the opinion. But, as pointed out by Justice 
Miller, the bill of exceptions clearly set out the interest of 
the United States as a separate ground of defense. 

In the three similar cases — Wilcox v. Jackson,^ Brown 

1 9 Cranch li. 
«I3 Peters 498. 

5 



62 The Non-Suability of the State. 

V. Htiger/ Grisar v. McDowelP — arising after Osborn v. 
Bank, the objection was not raised. Justice Miller regarded 
this as evidence that the principle was considered as fully 
established. Justice Gray explained them on the ground 
that the United States was willing that the court should 
decide. " The view," he declared, " on which this court 
appears to have constantly acted, which reconciles all its 
decisions and is in accord with the English authorities, is 
this: the objection to the exercise of jurisdiction over the 
sovereign or his property, in an action in which he is not a 
party to the record, is in the nature of a personal objec- 
tion, which, if not suggested by the sovereign, may be pre- 
sumed not to be intended to be insisted upon." Now, the 
immunity from suit is a personal privilege, which may be 
waived. But certainly the court ought not presume a waiver, 
and require an active insistence upon the privilege, in a suit 
against individuals, to which the sovereign is not even a 
party. It ought rather, if facts appear that show the suit 
to be in violation of the immunity of the sovereign, dismiss 
the case unless a waiver of the immunity is shown. This 
is confirmed by the consideration that the law officers of 
the United States have no power to consent to a suit against 
the United States;^ yet this view of Justice Gray would 
make the allowance of suits, in effect against the United 
States, depend upon whether these law officers might or 
might not object. Anyway, this view of Justice Gray does 
not afifect the decisions in United States v. Peters and 
Osborn v. Bank. 

Two recent opinions did furnish him some support. In 
" The Davis,"* the opinion placed a false emphasis on 
whether property is in the possession of public officers 
or not.^ And in Carr v. United States,® Justice Bradley, 
delivering the opinion of the court, expressed the opinion 

1 21 How. 305. 

2 6 Wall. 363. 

' See Part I, p. 44, note. 

* ID Wall. IS. 
'See above, p. 38. 

• 98 U. s. 433. 



Suits to Recover Property. 63 

that cases like United States v. Lee are barred by the 
interest of the United States. But, as pointed out by 
Justice Miller, this was purely obiter. No doubt it was 
these two opinions that encouraged the vigorous obejction 
to the action in United States v. Lee. On the whole, how- 
ever, the summary of the cases by Justice Miller was well 
justified: "This examination of the cases in the court 
establishes clearly this result : that the proposition that when 
an individual is sued in regard to property which he holds 
as officer or agent of the United States, his possession can- 
not be disturbed when that fact is brought to the attention 
of the court, has been overruled and denied in every case 
where it has been necessary to decide it ; and that in many 
others, where the record shows that the case as tried below 
actually and clearly presented that defense, it was neither 
urged by counsel nor considered by the court here, though, 
if it had been a good defense, it would have avoided the 
necessity of a long inquiry into the plaintiflf's title and of 
other perplexing questions, and have quickly disposed of 
the case. And we see no escape from the conclusion that, 
during all this period, the court has held the principle to 
be unsound, and in the class of cases like the present . . . , 
it was not thought necessary to re-examine a proposition 
so often and so clearly overruled in previous well con- 
sidered decisions." 

The argument upon principle was strongly stated by 
Justice Gray for his side : " The sovereign is not liable to 
be sued in any judicial tribunal without its consent. The 
sovereign cannot hold property except by agents. To main- 
tain an action for the recovery of possession of property 
held by the sovereign through its agents, not claiming any 
title or right in themselves, but only as the representatives 
of the sovereign and in its behalf, is to maintain an action 
to recover possession of the property against the sovereign ; 
and to invade such possession of the agents, is to invade the 
possession of the sovereign, and to violate the fundamental 
maxim that the sovereign cannot be sued." " To maintain 



64 The Non-Suability of the State. 

this action, independently of any legislation by congress, is 
to declare that the exemption of the United States from 
being impleaded without their consent does not embrace 
lands held by a disputed title." 

Justice Miller, in answer to this argument, pointed out 
that here was upon its face an ordinary action against indi- 
viduals for the wrongful possession of the plaintiffs' land. 
The defendants set up in defense an authority; but if that 
authority was not lawful, it was no authority at all. The 
objection to the action was, he said, inconsistent with the 
fifth amendment: "If this constitutional provision is a 
sufficient authority for the courts to interfere to rescue a 
prisoner from the hands of those holding him under the 
asserted authority of the government, what reason is there 
that the same courts shall not give remedy to the citizen 
whose property has been seized without due process of law, 
and devoted to public uses without just compensation." 
Certainly, as already pointed out, the fact that the United 
States can act only through agents should not bar an other- 
wise proper action against the agents. Moreover, the fact 
that the officers claimed no personal interest in the land did 
not, of course, render them less liable for their wrongful 
possession. It is true that in such cases the court will, if 
possible to join the parties beneficially interested, require 
this to be done. But if it cannot be done, the court will 
enforce the right of action against the agent, to which the 
principal is not an indispensable party. 

Justice Gray also urged the objection of public policy. 
^' It is essential to the common defense and general welfare," 
he declared, " that the sovereign should not, without its 
consent, be dispossessed, by judicial process, of forts, 
arsenals, military posts and ships of war, necessary to guard 
the national existence against insurrection and invasion; of 
custom houses and revenue cutters, employed in the collec- 
tion of the revenue; or of light-houses and light-ships." 
In answer, Justice Miller pointed out that the United States, 
as decided in Carr v. United States,^ is not bound by deci- 

^98U. S. 433. 



Suits to Recover Property. 65 

sions against its officers, and may itself bring an action to 
have its rights determined ; or, if satisfied that its title has 
been shown to be invalid, may secure the property by pur- 
chase or by condemnation. Anyway, he said, any evils that 
might result would be small indeed compared to the alter- 
native evil of allowing private property to be taken without 
due process of law, and denying recovery upon a mere 
claim of title in the state. 

The decision in United States v. Lee has never since been 
questioned. It was reaffirmed, without dissent, in Tindal 
V. Wesley,^ a similar action against State officers.^ In 
Stanley v. Schwalby,^ Justice Gray, deHvering the opinion 
of the court, considered that the judgment below was di- 
rectly against the United States, because " in an action of 
trespass to try title, under the laws of Texas, a judgment 
for the plaintiff is not restricted to the possession, but may 
be (as it was in this case) for title also." Of course, 
there is no ground of action against the officers to de- 
termine title, because they claim no title. In Chandler v. 
Dix,* where the State had the same relation to the land 
that the United States had in United States v. Lee, the 
court sustained a decree dismissing a bill to set aside the 
title of the State, brought against officers merely in posses- 
sion without claim of title in themselves. In case of a lien 
upon property, also, the right of action is against those 
claiming title to the property; there is no ground of action 
against officers merely in possession — as was held in Cun- 
ningham V. Macon and Brunswick Railroad Company.^ 

A strong State case, broadly applying the principle set 
out in this chapter, is Michigan State Bank v. Hammond.® 
The State received an assignment of property, on condition 
of saving the assignee harmless against certain liabilities. 

1 167 U. S. 204. 

' U. S. V. Lee was also followed in an interesting recent case in 
Maryland — Weyler v. Gibson, no Md. 636. 
' 162 U. S. 255. 
* 194 U. S. sgo. 
" 109 U. S. 446. 
« I Doug. (Mich.) 527. 



66 The Non-Suability of the State. 

The property was put in charge of certain State officers for 
disposal, and for payment of the proceeds into the treasury. 
The State failed to save harmless the assignee, who there- 
upon brought a bill in equity against the State officers to 
have the property applied. The court held that title had 
reverted to the assignee on breach of the condition subse- 
quent, so that he might have sued for the property in eject- 
ment, trover, or money had and received. Equity would 
not decree a forfeiture, but would grant relief to the extent 
of applying the property to fulfil the obligation of the State 
to pay the liabilities of the assignee. 

The broad principle, then, governing suits against public 
officers for property claimed by the state, is this : the action 
may be maintained whenever grounded upon alleged wrong- 
ful possession of property of the plaintiff. The fact that 
the defense depends upon the title of the state does not bar 
the action. The direct interest of the state is not denied; 
the state may, if it choose, join as party defendant. But 
the interest of the state does not bar the separate right of 
action against the officer. The propriety of the suit against 
the officer depends not upon the interest of the state, but 
upon the nature of the action. 



CHAPTER IV. 

Mandamus and Analogous Remedy in Equity. 

" It has been well settled that, when a plain official duty, 
requiring no exercise of discretion, is to be performed, and 
performance is refused, any person who will sustain per- 
sonal injury by such refusal may have a mandamus to 
compel its performance ; and when such duty is threatened 
to be violated by some positive official act, any person who 
will sustain personal injury thereby, for which adequate 
compensation cannot be had at law, may have an injunction 
to prevent it. In such cases, the writs of mandamus and 
injunction are somewhat correlative to each other."^ Or, in 
the language of Justice Miller: "in this class of cases, 
where it shall be found necessary to enforce the rights of 
the individual, a court of chancery may, by a mandatory 
decree or by an injunction, compel the performance of the 
appropriate duty, or enjoin the officer from doing that which 
is inconsistent with that duty and with the plaintiff's rights 
in the premises." A study of what constitutes "a. plain 
official remedy," such as to open this class of remedies 
against the officer, is not the purpose here. The examina- 
tion here is limited to the relation of this class of cases to 
the immunity of the state from suit. 

In performing the duty imposed upon him, the officer acts 
for the state. The act may be simply the exercise of a 
governmental function, which the state is under no obliga- 
tion to perform; or, it may constitute the performance of 
an obligation of the state to the individual, for which, if 
the state were suable, he could hold the state. But the 
right to sue the officer does not arise from the obligation of 
the state. For instance, the fact that the state is bound by 
contract to pay certain money to individuals, as in Louis- 

* Justice Bradley, in Board of Liq. v. McComb, 92 U. S. 531. 

67 



68 The Non-Suability of the State. 

iana v. Jumel, would not in itself give rise to a right of 
action against the officer in possession of the money to 
compel him by mandamus to pay it over.^ In Pitcock 
V. State,^ the superintendent and financial agent of the 
Arkansas State penitentiary had made a contract, duly 
approved by the board of commissioners, to supply a 
manufacturing company with convict labor. An action 
against the officers to restrain the withdrawal of con- 
victs, and to compel the furnishing of more according to 
the contract, was held to be in effect a suit against the State, 
because the obligation of the contract was upon the State, 
not upon the officers. One of the judges. Wood, took the 
view that, although the board had discretion in making the 
contract, yet, when made, they were bound to execute it, 
just as much as though the legislature had made the con- 
tract and ordered the board to carry it out. And it would 
seem that, where an officer has authority to make a contract, 
and to execute it in the course of his official functions, a 
mandate to execute it may properly be implied. At any 
rate, however, the right of action against the officer arises, 
not out of the obligation of the state, but out of the new 
legal relation between him and the individual when a plain 
official duty is imposed upon him, in the performance of 
which the individual has a personal interest. Such being 
the principle, there is no reason why the liability of the 
officer should be affected by the fact that the act also con- 
stitutes the performance of a contract by the state. In 
Rolston V. Crittenden,^ suit to compel action by the governor 
of Missouri was held not to be a suit against the State, al- 
though the act constituted the performance of a contract 
by the State. 

When such a right of action, by mandamus or injunction, 
exists against an officer, " if the officer plead the authority 
of an unconstitutional law for the non-performance or 
violation of his duty, it will not prevent the issuing of the 

1 Nor may a trust resting upon the state be enforced by a suit 
against officers — Cunningham v. R.R. Co., 109 U. S. 446. 
« 121 S. W. (Ark. 1909) 742. 
»I20 U. S. 390. 



Mandamus and Analogous Remedy in Equity. 69 

writ."^ Woodruff v. TrapnalP was an action of mandamus 
to compel the attorney general of the State of Arkansas to 
accept, in payment of a judgment, notes of the State bank, 
which the State had promised to receive for all debts due 
the State ; which law had, however, since been repealed. 
The supreme court held the repealing act unconstitutional, 
and reversed the judgment of the State court denying the 
mandamus. No objection was made that the suit was in 
effect against the State. 

In Board of Liquidation v. McComb,^ objection was made. 
The State of Louisiana provided for an issue of $15,000,000 
of consolidated bonds to take over its existing indebtedness, 
at the rate of sixty cents on the dollar, the new bonds to be 
secured by a certain tax and by other special provisions. 
The duty of making the exchange was imposed on a board 
of liquidation, composed of the governor and other State 
officers. The act provided that the power of the judiciary, 
by means of mandamus, injunction, and criminal pro- 
ceedings, should be exerted to compel the carrying out of 
the provisions of the act. ^lost of the creditors accepted 
the offer of the State. A later act provided that a claim of 
the Louisiana Levee Company against the State might be 
exchanged at par for consolidated bonds. This suit was by 
holders of such bonds to restrain the board from issuing the 
bonds for the claim in full. The supreme court held that 
it was part of the consideration of the contract with the 
bondholders that the new bonds should be issued only at 
sixty cents on the dollar; that, therefore, the act providing 
for exchange at par was unconstitutional, and could afford 
no justification to the board for the non-performance or 
violation of its plain official duty under the original act. 

Louisiana v. Jumel* arose over the same issue of bonds. 
The act authorizing the issue provided for a certain tax to 
pay the interest, and the surplus to buy up the principal: 

1 Justice Bradley, in Bd. of Liq. v. McComb. 
*io How. 190. 
»92 U. S. 531- 
*io7 U. S. 711. 



70 " The Non-Suability of the State. 

" The interest tax aforesaid shall be a continuing annual 
tax until the said consolidated bonds shall be paid or re- 
deemed, principal and interest; and the said appropriation 
shall be a continuing annual appropriation during the same 
period; and this levy shall authorize and make it the duty 
of the auditor and treasurer and the said board respectively, 
to collect said tax annually and pay said interest and redeem 
said bonds until the same shall be fully discharged." And 
a constitutional amendment, sanctioning the issue, pro- 
vided : " to secure such levy, collection and payment, the 
judicial power shall be exercised when necessary. The tax 
required for the payment of the principal and interest of 
said bonds shall be assessed and collected, each and every 
year, until the said bonds shall be paid, principal and inter- 
est, and the proceeds shall be paid by the treasurer of the 
State to the holders of said bonds, . . . and no further leg- 
islation or appropriation shall be requisite for the said 
assessment and collection, and for such payment from the 
treasury." 

In 1880, a new constitution was adopted which provided, 
in what was called the " debt ordinance," that the coupons 
falling due January i, 1880, should be remitted, and the 
interest taxes collected to meet said coupons transferred to 
defray the expenses of the State government, and for a 
large reduction of interest on subsequent coupons, and the 
discontinuance of the special tax. Holders of consolidated 
bonds brought suit in the United States circuit court against 
the auditor and treasurer, and other officers composing 
the board of liquidation, "that the defendants and each 
of them may be adjudged to replace and re-instate to 
the credit of said interest fund any money or funds that 
may have been diverted therefrom, . . . and that said de- 
fendants and each of them may be peremptorily enjoined 
and restrained from recognizing as valid against your 
orators, article 208 of the constitution of Louisiana, and the 
debt ordinance." At the same time, an action of manda- 
mus was begun in the State court, and removed to the United 



Mmidamns and Analogous Remedy in Equity. 71 

States circuit court, against the same officers, to compel 
them to apply all moneys levied and fixed by the act of 1874 
to the purposes of that act, and to proceed to collect the tax 
fixed and levied by the act of 1874, and apply the moneys 
thereby realized to the purposes of the act. The two cases 
were decided together by the supreme court. The court 
did not deny that the promises and pledges of the funding 
act and constitution of 1874 were part of the contract of 
the State, and that the constitution of 1880 and the debt 
ordinance, so far as in violation, were unconstitutional. 
But it held that the suits were in effect against the State, 
and could not be maintained. 

Chief Justice Waite delivered the opinion of the court. 
A large part of the opinion was devoted to showing that 
the officers concerned were not made trustees for the bond- 
holders in respect to the collection of the tax and the dis- 
bursement of the proceeds, but that the money came into 
the treasury and was disbursed just like other taxes. Board 
of Liquidation v. McComb he explained upon the ground 
that " the board held the new issue of bonds in trust, and 
everyone who gave up his old obligations and accepted the 
new in settlement became a beneficiary under the trust, and 
might act accordingly." This explanation shows that the 
chief justice did not properly appreciate the nature of the 
relief asked in that case and in the present case. If there 
was any trust in that case, it was in the State, and of course 
not enforceable as such in an action against the officers. 
There was no pretense of any absolute vesting of the bonds 
in the board in trust; and the relief was not granted upon 
that ground. So, in the present case, the action against the 
officers was not based on any idea of a trust in them. Yet 
the whole opinion is colored with the idea that this was an 
attempt to compel, through the officers, the performance of 
the obligations of the State. Properly viewed, the action 
was based, not on the obligation of the State, but on the 
" plain official duty " imposed on the officers. 

Were the duties imposed on the officers by the funding 



72 The Non-Suability of the State. 

act and constitutional amendment of 1874, considered apart 
from the later enactments, such as to be judicially enforce- 
able against them as such? Chief Justice Waite laid stress 
on the extensive nature of the rehef asked: "The relators 
do not occupy the position of creditors of the State demand- 
ing payment from an executive officer charged with the 
ministerial duty of taking the money from the public treas- 
ury and handing it over to them, and, on his refusal, seek- 
ing to compel him to perform that specific duty. . . . But 
the simple question presented is whether a single bond- 
holder or a committee of bondholders can, by the judicial 
writ of mandamus, compel the executive officers of the State 
to perform generally their several duties under the law. 
. . . Our attention has been called to no case in the State 
courts of Louisiana in which such general relief has been 
afiforded. . . . The remedy sought, in order to be complete, 
would require the court to assume all the executive author- 
ity of the State, so far as it related to the enforcement of 
this law, and to supervise the conduct of all persons charged 
with any official duty in respect to the levy, collection and 
disbursement of the tax in question until the bonds, princi- 
pal and interest, were paid in full, and that, too, in a pro- 
ceeding to which the State, as a State, was not and could 
not be made a party. It needs no argument to show that the 
political power cannot be thus ousted of its jurisdiction, and 
the judiciary set in its place." And, in Cunningham v. 
Macon and Brunswick Railroad Company,^ Justice Miller 
explained Louisiana v. Jumel upon the ground that, in this 
class of cases, the duty of the officer must be "a well-defined 
duty in regard to a specific matter, not affecting the general 
powers or functions of the government," and that Board 
of Liquidation v. McComb was as far as the court was will- 
ing to go in this direction. The reason for the judgment in 
Louisiana v. Jumel he declared to be that " there was no 
jurisdiction in the circuit court, either by mandamus at law 
or by a decree in chancery, to take charge of the treasury 
of the State, and, seizing the hands of the auditor and 

1 109 U. S. 446. 



Mandamus and Analogous Remedy in Equity. 73 

treasurer, to make distribution of the funds found in the 
treasury in the manner in which the court might think just." 

It is certainly true that the jurisprudence of the supreme 
court has tended to hmit the remedy of mandamus to 
specific, ministerial acts, not requiring the exercise of judg- 
ment; whereas the State courts have shown a tendency to 
broaden the remedy to all acts that are mandatory, not left 
to the discretion of the officers. For instance. Justice Field 
took it for granted that mandamus will lie against the 
treasurer to compel payment of appropriations for salaries ; 
and such is the general ruling in the State courts. But, 
although Chief Justice Waite impliedly recognized that a 
creditor of the State may compel the performance of " that 
specific duty" by "an executive officer charged with the 
ministerial duty of taking the money from the public treas- 
ury and handing it over," it was held, in United States v. 
Guthrie,^ that mandamus will not lie to compel the secretary 
of the treasury of the United States to pay an appropria- 
tion for a salary in the regular course of his duties. In 
that case, it is true, the officer had been removed, illegally 
as alleged, by the president; and the occurrence of Justice 
Curtis was upon the ground that title to the office must be 
settled first ; and Justices Campbell and Grier also concurred 
specially, though not expressing their grounds. But, as 
Justice McLean contended in his vigorous dissenting opin- 
ion, if the duty was ministerial, the illegal removal by the 
president would not alter the case. And the opinion of the 
court seems to be based on the broad ground that the 
judiciary will not interfere with the administration of the 
executive departments. 

On the other hand, Justices Field and Harlan, dissenting 
in Louisiana v. Jumel, considered that " if the new consti- 
tution had never been adopted, there could be no question 
as to the power of the State court to require that the moneys 
collected should be applied to the payment of the interest." 
Undeniably, there were definite funds in the treasury, which 
it was the plain duty of the officers to apply to a definite 

1 17 How. 284. 



74 The Non-Suability of the State. 

purpose — the payment of the coupons due January i, 1880. 
Justice Harlan said : " It is apparently urged, as an obstacle 
in the way of relief, that plaintiffs do not seek to have the 
proceeds of these taxes applied specially to the payment of 
their claims, but ask such orders as will enable all holders 
of consolidated bonds to participate in the distribution of 
the moneys raised under the statute and constitution of 
1874. ... If the relief asked cannot be given for the bene- 
fit of all holders of consolidated bonds, there would seem 
to be no difficulty in restricting payments to such as are 
actually before the court. ... It is, however, proper to 
say that, notwithstanding the criticisms made by the court 
upon the nature and extent of the relief asked, I do not 
feel authorized to infer from its opinion that relief would 
be given to the parties before it, had they asked payment 
of their coupons only." Any idea that individual bond- 
holders could not obtain relief because the acts complained 
of did not concern them only, but were in the general ad- 
ministration of an act, is, of course, refuted by Board of 
Liquidation v. McComb. And the distinction between 
duties specially imposed upon officers, and duties in the 
regular exercise of their offices, has been finally disposed of 
by Ex parte Young.'- 

The relief here should have been granted if sustainable 
upon the jurisprudence of Louisiana.^ Chief Justice Waite 
said : " Our attention has been called to no case in the state 
courts of Louisiana in which such general relief has been 
afforded." And, indeed, in State ex rel. Hart v. Burke,' in 
a case exactly like the present action for mandamus, relief 
was denied. But that decision was clearly put, not upon 
the extensive nature of the relief asked, but upon the re- 
pealing State constitution and debt ordinance. Justice Field 
said : '" There can be no doubt that, but for the debt ordi- 
ance . . . , a mandamus or other compulsory process could 

^ 209 U. S. 123. 

" That is, apart from the question, which was not decided, whether 
the power of the United States circuit court to issue mandamus as 
an original writ was secured by the removal from the State court. 

'23 La. Ann. 498. 



Mandamus and Analogous Remedy in Equity. 75 

have been issued by the courts of Louisiana to compel 
officers of the State ... to execute the provisions of the 
act of 1874 and of the constitutional amendment of that 
year." And Justice Harlan said of State ex rel. Hart v. 
Burke : " It is, I think, clear that, but for the debt ordinance, 
the court would have sustained the writ in that case." That 
he did not misinterpret that case, he said, was clear from 
the subsequent case of State ex rel. Newman v. Burke,^ 
in which was granted a mandamus against the treasurer, 
auditor, and fiscal agent to compel the execution of their 
duties under the debt ordinance, by the transfer on the 
books of the money collected for taxes for the payment of 
the coupons due January i, 1880, to the general fund, and 
for the payment of warrants on the general funds held 
by the relator. 

If the action were otherwise maintainable, what was the 
effect of the debt ordinance? In State ex rel. Hart v. 
Burke, it was said: "We are aware of no principle which 
excepts the relation of states to their constituted official 
agents from the general rule of revocability which applies 
to all other mandates." And in Louisiana v. Jumel : " As 
against everything except the outstanding bonds and 
coupons, the constitution is the fundamental law of the 
State, and it is only invalid so far as it impairs the obliga- 
tion of the contract." Does this mean that, although the 
debt ordinance was invalid as violating the pledge of the 
State to collect the tax and pay the coupons, yet, so far as 
it altered the duties of the particular officers, it was valid? 
If so, it is directly contrary to the opinion in Board of 
Liquidation v. McComb. Certainly, it would seem that it 
was part of the contract that the tax should be collected 
and the proceeds paid as provided in the original act ; and 
it will be assumed here that the termination of the duties 
of the officers was unconstitutional.- 

1 35 La. Ann. 185. 

* Of course, if the office were abolished, even if the law abolishing 
it were held unconstitutional the court could grant no relief, since it 
could not keep the office filled — that is political. 



76 The Non-Suability of the State. 

The decision in State ex rel. Hart v. Burke was placed 
upon this ground: that the court had no power to declare 
a provision of the State constitution unconstitutional, except 
in a case over which it had jurisdiction; that a suit to 
enforce the performance of any contract or obligation of 
the State against its will was a suit against the State, over 
which the court had no jurisdiction; that, although a State 
statute contrary to the State constitution might be held not 
to express the will of the State, yet a provision of the State 
constitution might not — " The effect of the federal constitu- 
tion is not to deprive the State of the power of volition, 
but simply to restrain the operation and execution of her 
will, so far, and so far only, as it conflicts with that instru- 
ment." This involves the constitutional heresy that the 
operation of the federal constitution upon a State enactment 
is different from the operation of a State constitution upon 
a State statute. Yet the opinion of Chief Justice Waite is 
full of the same idea : " The question, then, is whether the 
contract can be enforced, notwithstanding the constitution, 
by coercing the agents and instrumentalities of the State, 
whose authority has been withdrawn in violation of the 
contract, without having the State itself in its poHtical 
capacity a party to the proceedings. The relief asked will 
require the officers against whom the process goes to act 
contrary to the positive orders of the supreme political 
power of the State, whose creatures they are and to which 
they are ultimately responsible in law for what they do." 
Such language justified the vehement protest of the dissent- 
ing justices, who regarded the decision as placed upon that 
ground.^ 

An explanation less gross may be found in views pre- 
sented in opinions in other cases. Justice Matthews, with 
whom agreed three other justices, in Antoni v. Greenhow,^ 
based his concurrence on the ground that " a suit to compel 

1 Chief Justice Waite did, in fact, in Rolston v. Crittenden, 120 
U. S. 390, squarely explain Louisiana v. Jumel on the ground that 
" There the effort was to compel a State officer to do what a statute 
prohibited him from doing." 

« 107 U. S. 769. 



Mandamus and Analogous Remedy in Equity. "jy 

the officers of a State to do the acts which constitute a per- 
formance of its contract by the State, is a suit against the 
State itself," maintainable only so long as the State allows 
it. And this view was adopted by Justice Bradley, speak- 
ing for the four dissenting justices, in Poindexter v. Green- 
how.^ 

Another statement of much the same position is that by 
Justice Lamar in Pennoyer v. McConnaughy.- He divided 
cases against State officers into two classes : " The first class 
is where the suit is brought against the officers of the State 
as representing the State's action and liability, thus making 
it, though not a party to the record, the real party against 
which the judgment will so operate as to compel it to 
specifically perform its contract. . . . The other class is 
where a suit is brought against defendants who, claiming 
to act as officers of the State, and under the color of an 
unconstitutional statute, commit acts of wrong and injury 
to the rights and property of the plaintiff acquired under a 
contract with the State." In other words, an officer may 
not be judicially controlled when, in acting, he will be act- 
ing for the State; but, in acting under color of an uncon- 
stitutional authority, he is not acting for the State, and is 
liable to suit. 

Both these views — of Justice Matthews and of Justice 
Lamar — are out of harmony with the opinion in Board of 
Liquidation v. McComb — that " it has been well settled that, 
when a plain official duty, requiring no exercise of dis- 
cretion, is to be performed, any person who will sustain 
personal injury by such refusal may have a mandamus 
to compel its performance ; ... if the officer plead the 
authority of an unconstitutional law . . . , it will not pre- 
vent the issuing of the writ." Justice Bradley, who wrote 
this opinion, did not mention it in Poindexter v. Greenhow, 
but seemed inclined to class the case with Davis v. Gray as 
a case of " State aggression on the rights of individuals,"^ 

1 114 U. S. 270. 

' 140 U. S. I. The same idea was more or less worked out by Jus- 
tice Matthews in Ex parte Ayers, 123 U. S. 443. 
'See below, p. 88. 



78 The Non-Suability of the State. 

adding that " these cases approach nearer to suits against a 
State than any others which have received the sanction of 
this court." But the principle stated in the McComb case 
has been restated with approval many times, and has never 
been challenged. Justice Matthews did not mention the 
case in Antoni v. Greenhow or in Hagood v. Southern.^ 
In Ex parte Ayers, he simply said, quoting from the Mc- 
Comb case, without any attempt to harmonize, that the view 
stated by him did not " forbid suits against officers in their 
official capacity either to arrest or direct their official action 
by injunction or mandamus, where such suits are authorized 
by law, and the act to be done or omitted is purely minis- 
terial, in the performance or omission of which the plaintiff 
has a legal interest." Justice Lamar evidently did not know 
just what to do with the case, as appears from the irrelevant 
way he inserted it. After pointing out his second class of 
cases, "where a suit is brought against defendants who, 
claiming to act as officers of the State and under the color 
of an unconstitutional statute, commit acts of wrong and 
injury to the rights and property of plaintiff acquired under 
a contract with the State," he continued : " Such suit, 
whether brought to recover money or property in the hands 
of such defendants, unlawfully taken by them in behalf of 
the State, or for compensation in damages, or, in a proper 
case where the remedy at law is inadequate, for an injunc- 
tion to prevent such wrong and injury, or for a mandamus, 
in a like case, to enforce upon the defendant the perform- 
ance of a plain legal duty, purely ministerial, is not within 
the meaning of the eleventh amendment, an action against 
the State," citing, among other cases, the McComb case. 

Aside from the inconsistency with the McComb case, 
which a formal approval of the doctrine in that case of 
course does not cure, the whole position is based upon the 
idea, the error of which was pointed out at the beginning 
of the chapter, that the nature of the action of mandamus 
is changed by the fact that the "plain official duty" to be 
performed is an act "which constitutes a performance of 

1 117 U. S. 52. ~~' 



Mandamus and Analogous Remedy in Equity. 79 

its contract by the state. "^ A state may, of course, pro- 
vide for such action against officers as a form of action 
against itself. But the fact that the state extends the remedy 
where it would not exist by ordinary practice does not 
necessarily make it a form of action against the state. 
That should be determined by the nature and purpose of 
the remedy. In Louisiana v. Jumel, for instance, it seems 
clear that the remedy was given not as a means of compell- 
ing the State to live up to its obligations — there was no idea 
that the State would do otherwise, — but as a means given 
by the State to the creditors of compellnig the proper ex- 
ercise of their duties by the State officers. At any rate, 
where the remedy is not by special grant, but simply the 
result of the imposition of such duties as by the general 
law of the state are enforceable by mandamus, there is not 
the slightest ground for regarding the action as a suit 
against the state. If the action is maintainable, upon the 
jurisprudence which governs the case, as a suit against the 
officers as such, any further distinction is arbitrary and out 
of place.- 

The only ground, then, consistent with sound constitu- 
tional principle, upon which Louisiana v. Jumel may be 
based is that upon which Justice Miller rested it in his 
analysis of the cases in Cunningham v. Macon and Bruns- 
wick Railroad Company — namely, that the nature of the 
relief was beyond the scope of mandamus. And that was 
probably wrong upon the jurisprudence of Louisiana, which 
should have governed. 

1 It involves, also, two propositions which have been opposed in 
other parts of this paper: that consent of a State may give jurisdic- 
tion in cases coming within the prohibition of the eleventh amend- 
ment (see Part I, p. 29) ; and that withdrawal of a remedy against 
the State, though made part of a contract, is not unconstitutional 
(see Part I, p. 36). 

2 In Antoni v. Greenhow — approved by Justice Lamar in Pen- 
noyer v. McConnaughy, — Justice Matthews and the three justices 
who agreed with him even held to be a suit against the State, man- 
damus to compel the " purely ministerial duty " of receiving coupons 
for taxes, thus running squarely counter to the McComb case. In 
Antoni v. Greenhow, the remedy to compel acceptance of the cou- 
pons existed, not by special grant, but simply, as the State court had 
held, under the general law as to mandamus. 



8o The Non-Suability of the State. 

The decision seems unfortunate in its whole bearing. It 
prevents a State from offering to creditors an inviolable 
guarantee of the fulfilment of its contract. Moreover, it 
is impossible to determine its real scope — where the line 
between it and Board of Liquidation v. McComb is to be 
drawn. Louisiana v. Jumel has, however, been squarely- 
reaffirmed in Hagood v. Southern,^ Justices Field and Har- 
lan still dissenting, and again in Louisiana v. Steele.^ 

[1 117 U. S. 52. 

p 134 U. S. 230. In Neganab v. Hitchcock, 202 U. S. 473, also, in 
which it was held, very properly, that the action against the secre- 
tary of the interior could not be maintained to enforce the execu- 
tion of a trust resting on the United States, the court passed over 
the question whether the action might be maintained to compel the 
execution of the act of 1889 as a plain official duty — " whether the 
courts would have power to control the action of the secretary of 
the interior in this matter, or whether the power and authority 
so to do is purely political." The relief asked was, however, 
clearly beyond the scope of judicial enforcement upon the juris- 
prudence of the courts of the United States. A decision in a 
State court, in line with Louisiana v. Jumel, is Board of Public 
Works V. Gantt, 76 Va. 455, decided by three judges against two. 
Contra, State v. Cardoza, 8 S. C. 71. 



CHAPTER V. 

Extension of the Principle of Equitable Relief 
Against Wrongful Acts. 

In Chapter II was set out the principle of Osborn v. 
Bank— that a pubHc officer may be enjoined, if equitable 
grounds exist, from committing a tort under color of an 
unconstitutional authority. The supreme court, as it was 
composed through the time of the Virginia coupon cases, 
was not inclined to extend the principle beyond acts for 
which the officers would be liable in tort.^ Justice Miller, in 
his analysis of the cases in Cunningham v. Macon and 
Brunswick Railroad Company, plainly had no thought of 
extending the principle. He balked at Davis v. Gray. He 
did not include it in his second class of cases—" where an 
individual is sued in tort for some act injurious to another 
in regard to person or property, to which his defense is 
that he has acted upon the orders of the government"; 
but put it where it did not belong, in the third class^— where 
a plain official duty is imposed upon an officer, which he is 
about to violate. His doubt of the correctness of that 
decision is manifest in his comment upon it: "it is clear 
that, in enjoining the governor of the State in the per- 
formance of one of his executive functions, the case goes 
to the verge of sound doctrine, if not beyond it, and that 
the principle should be extended no further." That Justice 
Matthews shared this doubt is indicated by his failure to 
comment on the decision in his exhaustive opinion in Ex 
parte Ayers. He stated the principle governing cases of 
injuries by public officers thus: "The action has been sus- 
tained only in those instances where the act complained of, 

" The composition was practically the same through the great line 
of cases from U. S. v. Lee, io6 U. S. 196, to Ex parte Ayers, 123 

U- S. 443. , ^ - n^. . Tir 

"The class of cases treated m Chapter IV. 



82 The Non-Suability of the State. 

considered apart from the official authority alleged as justi- 
fication, and as the personal act of the individual defendant, 
constituted a violation of right for which the plaintiff was 
entitled to a remedy at law or in equity against the wrong- 
doer in his individual character." 

Davis V. Gray^ stood, however, decided. In that case, the 
State of Texas had made land grants in aid of a railroad 
company; the legal title was not yet conveyed. A later 
statute declared the grant forfeited, and opened the land to 
patent by the governor and land commissioner. The re- 
ceiver of the railroad brought a bill in the United States 
court to enjoin these officers from "interference with or 
infringement of the land grant." The court held the later 
statute unconstitutional, and granted the relief on the equit- 
able ground of preventing such a cloud on the title of the 
company, and of avoiding the great trouble and expense of 
actions against the individuals who might receive patents 
under the unconstitutional statute.- 

Justice Swayne, who delivered the opinion of the court, 
said that Osborn v. Bank decided three things : " ( i ) A cir- 
cuit court of the United States, in a proper case in equity, 
may enjoin a State officer from executing a State law in 
conflict with the constitution or a statute of the United 
States, when such execution will violate the rights of the 
plaintiff. (2) Where the State is concerned, the State 
■should be made a party, if it could be done. That it cannot 
be done is a sufficient reason for the omission to do it, 
and the court may proceed to decree against the officers 
in all respects as if the State were a party to the record." 
The statement that " the court may proceed to decree 

1 16 Wall. 203. 

2 Justice Davis, with whom agreed Chief Justice Chase, dissented 
on the ground that the suit was in effect against the State. The 
position of the Chief Justice was consistent with his opinion in Miss. 
V. Johnson, 4 Wall. 475, in which he placed the decision on the 
ground that the executive should not be interfered with in the 
execution of statutes, although alleged to be unconstitutional. It 
may be said that this opinion was entirely disregarded in Ga. v. 
Stanton, 6 Wall. 50, in which Justice Nelson put the decision on 
the ground that the rights for which the State claimed protection 
were purely political. 



Equitable Relief Against Wrongful Acts. 83 

against the officers in all respects as if the State were a 
party to the record," taken by itself, is of course too sweep- 
ing. It was criticized in both the majority and minority 
opinions in United States v. Lee. But limited, as it seems 
to have been intended, to the class of cases mentioned in 
(i), it probably is not erroneous. The principle stated in 
(i) has become fully established. Osborn v. Bank is not, 
however, authority for it. It is true that in that case, in 
addition to the decree for restitution, the decree of the 
circuit court against the execution of the unconstitutional 
statute levying the tax was sustained.^ But the only mode 
threatened of executing that statute was by distraint for 
the taxes under the warrant of the State auditor. So that 
Justice Matthews was justified in saying: "There is noth- 
ing, therefore, in the judgment in that cause as finally de- 
fined, which extends its authority beyond the prevention 
and restraint of the specific act done in pursuance of the 
unconstitutional statute of Ohio, and in violation of the 
act of congress chartering the bank, which consisted of 
the unlawful seizure and detention of its property." 

Davis V. Gray clearly went beyond the principle pro- 
pounded by Justice Matthews in Ex parte Ayers. The acts 
of the officers complained of — the issue of patents in the 
name of the State for land within the land grant of the 
railroad — were not wrongs as " the personal acts of the 
individual defendants," " considered apart from the offi- 
cial authority alleged as justification," but only as actions 
in their official capicity. If actions against public officers 
were to be limited, the distinction of Justice Matthews was 
clear and reasonable. But does not the principle, although 
not the authority of Osborn v. Bank extend further? The 
injury in that case would have been a tort on the part of 
any individual, apart from any official character. But even 
there the ground for equitable relief rested on the nature 
of the act in the light of the " official authority alleged as 

* See I Harv. L. Rev. 223 — D. H. Chamberlain, for this part of 
the case, adduced by counsel in argument in the Virginia coupon 
cases. 



84 The Non-Suability of the State. 

justification."^ An officer is separately liable for an injury. 
The fact that the injury is such as he could not inflict as 
an individual, but only by the exercise of his office, should 
not affect the case. The principle logically extends to any 
violation of a right of person or property under color of 
an unconstitutional authority. 

Any chance that the conservative tendency of the court 
might prevail was defeated by the fact that the next case, 
Pennoyer v. McConnaughy,^ was on all fours with Davis v. 
Gray.^ Justice Lamar propounded a broad principle to de- 
termine whether suits against public officers are suits 
against the State : " where the suit is brought against the 
officers of the State, as representing the State's action and 
liability" — ^that is, where, in performing the acts sought 
to be controlled, the officers will be acting for the State, — 
the suit is in effect against the State ; but " where a suit is 
brought against defendants who, claiming to act as officers 
of the State and under the authority of an unconstitutional 
statute " — in which case they are not acting for the State, — 
" commit acts of wrong and injury to the rights and prop- 
erty of the plaintiff acquired under a contract with the 
State," the suit is not against the State. Justice Lamar, 
in this opinion, pushed the distinction between affirmative 
relief as not available, and preventive relief as available, 
entirely too far. But, so far as regards the class of cases 
now under consideration, the criterion he stated is a proper 
one: it sustains the principle of relief against injuries in its 
full scope. Even if his view be accepted, however, that, in 
acting under an unconstitutional statute, officers are not acting 
for the State, it does not give the reason why a suit against 
the officers is not a suit against the State. For the statute 
cannot be held unconstitutional except in the exercise of 
jurisdiction; and if the statute be found vahd, in which 
case the officer is acting for the State, then, in his view, the 
court has exercised jurisdiction in a suit against the State. 

^See above, p. 48. 
2 140 U. S. I. 

3 Another similar case is Preston v. Walsh, 10 Fed. 315. See 
also State Bd. of Land Com. v. Carpenter, 16 Col. App. 436. 



Equitable Relief Against Wrongful Acts. 85 

The proper ground for the action against the officers is that 
a wrongful act is alleged against them, and that the court 
has jurisdiction to inquire into the authority they set up in 
justification. 

A case that at first sight appears contrary to Davis v. 
Gray is Oregon v. Hitchcock.^ Congress had granted to 
the State of Oregon swamp lands on public domain within 
the State. Later, an act of congress provided for the 
transfer by the Indians on a reservation of their right of 
occupancy to the United States, and for allotting and 
patenting the land in severalty to the Indians. The State 
claimed that the grant to it included swamp lands within 
the reservation, which vested upon the extinction of the 
Indian right of occupancy; and brought suit to restrain the 
secretary of the interior and the commissioner of the gen- 
eral land office from allotting and patenting under the act 
any swamp lands. Now, such a grant of swamp lands was 
not complete until identification. Hence the lands were still 
within the administration of the land department; and one 
ground for dismissal was the settled policy of the court not 
to interfere in the administration of the public lands, but 
to require all claims to be presented before the land de- 
partment until final action there.^ 

But the court also held the suit to be in effect against the 
United States. Justice Brewer quoted from his opinion in 
Minnesota v. Hitchcock :^ " Now, the legal title to these 
lands is in the United States. The officers named as de- 
fendants have no interest in the lands or the proceeds 
thereof. The United States is proposing to sell them. This 
suit seeks to restrain the United States from such sale, to 
devest the government of its title and vest it in the State. 
The United States is, therefore, the real party afifected by 
the judgment and against which in effect it will operate, 
and the officers have no pecuniary interest in the matter." 

^202 U. S. 60. 

'Mich. Land & Lumber Co., v. Rust 168 U. S. 589; Brown v. 
Hitchcock, 173 U. S. 473 ; Humbird v. Avery, 195 U. S. 480. 
' 185 U. S. 373- 



86 The Non-Suability of the State. 

Now, this was a good reason for holding, in Minnesota v. 
Hitchcock, that the suit could be a form of action pro- 
vided against the United States with the consent of the 
United States. But this did not prevent a similar action 
from being maintainable as a suit against the officers, in the 
al-jsence of consent of the United States. The language of 
Justice Brewer is just as applicable to Davis v. Gray, upon 
which the argument of counsel was based. The State 
claimed a vested jus in rem in the lands, and sought to 
restrain the violation thereof by the officers. It is true the 
contention of the State was wrong; but that could be deter- 
mined only in the exercise of jurisdiction. The opinion 
neither in Minnesota v. Hitchcock nor in Oregon v. Hitch- 
cock mentioned Davis v. Gray. It is fair to assume that 
the court had no intention of impairing the principle of that 
case,^ 

In Budd V. Houston,^ the principle was extended to grant 
corrective relief. A suit was sustained against the recorder 
of mortgages, tax collector, and recorder of conveyances, 
to remove a cloud on title caused by the registry of a void 
assessment by the recorder of mortgages, by the illegal tax 
sale to the State, and by the threatened registry of the title 
of the State, and to review these illegal tax proceedings and 
acts of the several officers. The case, to use a phrase of 
Justice Miller, "goes to the verge of sound doctrine." A 
bill to quiet title as against a disputed title in the State may 
not, of course, be maintained against the officers. But 
specific acts of officers which have caused a cloud on title 
may, perhaps, be corrected, just as well as they might have 
been restrained. 

In the matter of taxation, the principle warrants the 

*In Noble v. Union Riv. Logging R. R. Co., 147 U. S. 165, was 
sustained a decree enjoining the secretary of the interior and the 
commissioner of the general land office from executing an order 
revoking the approval of the company's maps for a right of way 
over the public land, and from molesting the company in the 
enjoyment of said right of way, which was held to have vested 
upon the approval by the secretary of the interior of the right of 
way selected under a grant by congress. 

^36 La. Ann. 959. 



Equitable Relief Against Wrongful Acts. 87 

restraint, not only of the actual collection of an unconstitu- 
tional tax, but also of the proceedings leading thereto. In 
Re Tyler,^ the court enjoined the levy for a tax alleged to 
have been over-assessed, as well as the collection thereof. 
In Fargo v. Hart,^ the auditor of Indiana was restrained 
from certifying to the auditors of the several counties an 
assessment on a railroad, which constituted an unconstitu- 
tional interference with interstate commerce. These acts, 
of course, were not possible to the defendants as private 
individuals, but only in their offiical capacity. They were, 
however, part of the proceedings in a threatened wrong, 
and as such enjoinable. 

The great field for application of the principle has been 
in the matter of rate regulation by the States. To enforce 
upon a railroad rates that are unconstitutional is a wrong. 
And all manner of means of enforcing such rates have been 
enjoined — the publication of the rates, the hearing of com- 
plaints for violation of them, the bringing of suits to en- 
force them.^ 

It must not be supposed, however, that ever}' act of an 
officer under color of an unconstitutional authority may be 
enjoined. The act must be such as to involve the separate 
liability of the officer. But the remedy for a breach of 
contract or violation of a trust is only against the party 
contractant or the trustee, not against the agent. So that, 
if the act is only a breach of a contract or trust of the state, 
there is no right of action against the officer.'* Thus, in 
Louisiana v. Jumel, the diversion of the moneys pledged for 
the coupons was a violation of a right of plaintiffs only so 
far as it was a breach of contract of the State. In Xeganab 
V. Hitchcock,^ the acts sought to be restrained violated 
rights of plaintiffs only as breaches of the trust resting 
upon the United States. The fact that the act constitutes 
a breach of contract or of trust on the part of the state 

» 149 U. S. 164. 

* 193 U. S. 490. 

* This means — by suits — is reserved for special treatment in 
Chao. VI. 

* See Justice Matthews, in Ex parte Ayers, 123 U. S. 443. 
» 2(r i '. S. 473. 



88 The Non-Suability of the State. 

does not, of course, exclude liability on the part of the 
officer. But there must be something more to involve such 
liability; there must be a violation of a jus in rem. The 
right of action against the officer is based upon this ground : 
an act that is a wrong in itself, unless made lawful. For 
instance, the enforcement of rates upon a railroad is an 
unlawful interference with the railroad, unless made law- 
ful ; and if the rates are confiscatory, they cannot be made 
lawful. That what prevents the act from being made law- 
ful is the fact that it constitutes an unconstitutional breach 
of contract on the part of the State, does not affect the case. 
The collection of a tax, for instance, is an unlawful inter- 
ference with property rights, unless the tax is lawful. It 
may be prevented from being lawful by reason of a con- 
tract exemption granted by the State. 

The distinction is well illustrated in the case of Pitcock 
V. State. ^ The superintendent and financial agent of the 
Arkansas State penitentiary, in the exercise of their powers, 
and with the approval of the board of commissioners, made 
a contract in the name of the State to supply a certain 
manufacturing company with convict labor. Suit was 
brought to restrain the withdrawal of the convicts in viola- 
tion of the contract, and to compel the furnishing of more 
to make up the amount of labor under the contract. A 
restraining order was granted ; and on violation thereof, 
judgment for contempt. The judgment was reversed by 
the court above on the ground that "a withdrawal of the 
convicts from the premises of plaintiffs was not a taking of 
or a trespass upon the latter's property. It was only a re- 
fusal to perform the alleged contract which plaintiffs seek 
to restrain." That is, the withdrawal was. not a wrong in 
itself unless supported by lawful authority, but was only a 
breach of the contract of the State. 

Board of Liquidation v. McComb has been classed with 
Davis V. Gray.^ And probably it may be based on the same 

1 121 S. W. (Ark. 1909) 742. 

* By Justice Bradley, it seems, in Poindexter v. Greenhow. And 
by Judge Billings in Chaff raix v. Bd., 11 Fed. 638. For the ground 
of the decision in the McComb case, see Chap. IV. 



Equitable Relief Against Wrongful Acts. 89 

principle. For in the McComb case the plaintiffs were 
holders of consolidated bonds ; and the action might be 
regarded as to restrain "the board from injuriously affect- 
ing their value, by issuing similar bonds to parties not 
entitled thereto." The threatened acts were not only 
breaches of contract, but violations of property rights. 
Similarly, where a State grants an exclusive franchise, the 
grantee acquires not merely a contract right, but a jus in 
rem, which he may protect against infringement by indi- 
viduals or by public officers in the name of the State. 

To conclude, then, the principle of Osborn v. Bank has 
been extended in Davis v. Gray and the subsequent cases. 
The broad principle is this : public officers may be restrained 
whenever, under color of unconstitutional authority, they 
are proceeding to violate rights in rem.^ 

^That the official position of the officers sued is taken into ac- 
count appears strongly in the ruling that the successors in office 
of the officers enjoined are privies to the decree. Prout v. Starr, 
188 U. S. 537 ; Gunter v. Atl. Coast Line R. R. Co., 200 U. S. 273. 
The successor in office may not be substituted, however, pending 
hearing on appeal or writ of error. Warner Valley Stock Co. v. 
Smith, 165 U. S. 28. See also Chandler v. Dix, 194 U. S. 590. 



CHAPTER VI. 

Ex Parte Young. 

One means of enforcing laws is by suits — criminal, or 
by way of mandamus or injunction. In Ex parte Young/ 
the question was squarely presented whether the law officers 
of a State may be restrained from bringing suits in the 
name of the State for the enforcement of a statute fixing 
railroad rates, alleged to be confiscatory, and therefore un- 
constitutional.^ 

To clear the discussion, several points may be quickly 
disposed of. In the first place, no regard will be given to 
the suggestion^ that the scope of the eleventh amendment 
might be limited in relation to the later fourteenth amend- 
ment. It has not been used in any decision;* and there 
seems not the slightest ground for it. Nor will the view of 
Justice Brewer be further noticed — that the interest of the 
state in the enforcement of its laws is only a governmental 
interest, and that such an interest is not sufficient to con- 
stitute the state party to a suit.^ Moreover, the fallacy in 
the idea® that the suit is not against the State because the 
officer is not acting for the State if the law is unconstitu- 
tional, has been exposed. As pointed out, the State has 

^209 U. S. 123. 

^Another ground of unconstitutionality was the fact that the 
penalties were so enormous as to show a design to scare the rail- 
roads from testing the constitutionality of the rates. This, of 
course, was only an additional ground of unconstitutionality, and 
would not make the suit against the officers any less a suit against 
the State. 

^ By Justice Shiras, in Prout v. Starr, 188 U. S. 537. 

* Justice Peckham, in Ex parte Young, assumed that the eleventh 
amendment retained full effect; although he honored the contrary 
suggestion so far as to say of the fourteenth amendment: "but 
a decision of this case does not require an examination or decision 
of the question whether its adoption in any way altered or limited 
the effect of the earlier amendment." 

" This view has been sufficiently disposed of in Part I, p. 42. 

' Stated even by Justice Peckham in Ex parte Young. 

90 



Ex Parte Young. 9^ 

an interest in whether the acts of its officers are lawful; 
and, anyhow, the question of constitutionality can be de- 
cided only in the exercise of jurisdiction, so that, if the law 
is found constitutional, the court will have exercised juris- 
diction over a suit against the State. On the other hand, 
as has been several times stated, the fact that the state 
can act only through agents does not make a suit against 
the agents a suit against the state. Also, the fact that the 
officers have no personal interest in the controversy makes 
no difference. 

The question whether, supposing the suit to be otherwise 
well brought, grounds for equitable relief exist, is inci- 
dental. It will be accepted here that the maxim that 
"equity has no jurisdiction to enjoin criminal proceedings" 
means only that in general no equitable grounds exist; but 
where there are special equitable grounds, the maxim does 
not apply. In such a matter as the fixing of rates, where 
penalties are provided for each violation, clearly there are 
equitable grounds. "The transactions of a single week 
would expose any company questioning the validity of the 
statute to a vast number of suits by shippers, to say nothing 
of the heavy penalties named in the statute. Only a court 
of equity is competent to meet such an emergency and 
determine, once for all, and without a multiplicity of suits, 
matters that affect not simply individuals, but the interests 
of the entire community, as involved in the use of a public 
highway and in the administration of the affairs of the 
quasi-public corporation by which such highway is main- 
tained."^ On the other hand, where the enforcement is to 
be simply by application for mandamus or mandatory in- 
junction to compel obedience, it would seem just as clear 
that the remedy by defense to such suit is adequate. If, 
however, criminal proceedings are enjoined, it may be 
proper to enjoin also any other action in which the same 
issues would be involved.- 

1 Justice Harl^n^Tsi^^^^thT^m^sTiep U. S. 466, 518. Justice 
Peckham, in Ex parte Young, also stated strongly the equitable 

^"^Tn Ex parte Young, where the only suit that the attorney gen- 



92 The Non-Suability of the State. 

In the earlier rate cases, where the enforcement of rates 
was entrusted to railroad commissions, no special point was 
made of the restraint of suits in actions to enjoin generally 
the enforcement of rates by the commissions. In Prout v. 
Starr, Justice Shiras took the view that, the court having 
jurisdiction to enjoin the board of transportation from en- 
forcing the rates, the injunction properly extended to enjoin 
suits to enforce such rates, on the ground that such suits 
would be an attempt by a party to the suit in the federal 
court to impair the jurisdiction of the federal court, by 
bringing suit involving the same questions in the State 
courts. "It is true," he declared, "that the defendant 
was included in the bill as attorney general of the State, 
but that was because he was one of the board of transporta- 
tion, which was directed to enforce the provisions of the 
act. The bill did not seek to interfere with the acts of the 
attorney general in prosecuting offenders against the valid 
criminal laws of the State, but its object is to prevent him 
from collecting penalties that had accrued under the provi- 
sions of a statute judicially determined to be void." Justice 
Peckham, in Ex parte Young, stated the same view : " When 
such indictment or proceeding is brought to enforce an 
alleged unconstitutional statute, which is the subject-matter 
of inquiry in a suit already pending in a federal court, the 
latter court, having first obtained jurisdiction over the sub- 
ject-matter, has the right, in both civil and criminal cases, 
to hold and maintain such jurisdiction to the exclusion of 
all other courts, until its duty is finally performed." This 
view of enjoining such suits, namely, that it is incidental to 
the exercise of jurisdiction, and necessary to make the 
jurisdiction of the federal court effective, avoids conflict 
with section 720 of the revised statutes, forbidding the 

eral, Young, could bring, was by formal action in the name of the 
State for mandamus, criminal proceedings by the prosecuting 
attorneys of the State were also enjoined. Anyhow, the question 
of equitable ground probably did not arise in that case, since the 
case did not come up on appeal in the injunction suit, but on 
petition for habeas corpus upon sentence for contempt for violation 
of the injunction. 



Ex Parte Young. 93 

granting of a writ by any court of the United States to stay 
proceedings in any court of a State.^ 

Even where the suits are to be brought in the name of 
the commission, however, I think that this doctrine of 
perfecting jurisdiction, by enjoining parties to the action 
from bringing other suits involving the same question, does 
not properly apply. The suits, though in the name of the 
commission, are merely forms of action by the State.^ But, 
the State not being a party to the original suit, suits by the 
State cannot be enjoined; and the fact that the act has been 
declared unconstitutional does not make the suit to enforce 
it any less a suit by the State, any more than in any other 
case the suit is any less a suit by the plaintiff because his 
ground of action is not well-founded.^ The point is still 
clearer where the suits are to be brought in the name of the 
State by the attorney general, who, although a member of 
the commission, brings the suit not in that capacity, but in 
his entirely distinct capacity as attorney general. At any 
rate, whatever view be taken of the cases where the officer 
has other connection with the enforcement of the rates, the 
doctrine of incidental jurisdiction certainly has no place 
where, as in the suit from which Ex parte Young arose, the 
suits are to be brought by the law officers of the State, who 
have no relation whatever to the enforcement of rates, 
except to bring suit in the name of the State. 

The enjoining of suits in the name of the State to enforce 
rates can properly be sustained, then, only upon the ground 
that such suits are simply part of the proceedings to violate 
the rights of the plaintiff under color of an authority 
alleged to be unconstitutional. That is, such suits may be, 

^The doctrine of Dietzsch v. Huidekoper, 103 U. S. 494. 

^ See Part I, p. 41. 

^ No special point was made of the enjoining of suits, in such 
actions to enjoin enforcement by commissions, so recently as Mc- 
Neill V. So. Pac. Ry. Co., 202 U. S. 543, and Miss. R. R. Com. v. 111. 
Cent. R. R. Co., 203 U. S. 335. In the latter case, the order of the 
commission was enforceable only by application to court for a' 
mandamus or mandatory injunction ; so that there was no ground' 
for equitable relief. This point, however, seems not to have been, 
raised. 



94 The Non-Suability of the State. 

by their connection, in themselves wrongful acts, from 
which the agents of the State may be restrained just as 
they may from other wrongful acts. Justice Brown first 
gave expression to this idea, in Davis and Farnum Manu- 
facturing Company v. Los Angeles •} " It would seem that, 
if there were jurisdiction in a court of equity to enjoin the 
invasion of property rights through the instrumentality of 
an unconstitutional law, that jurisdiction would not be 
ousted by the fact that the State had chosen to assert its 
power to enforce such law by indictment or other criminal 
proceeding." It was adopted in Ex parte Young. Justice 
Peckham said, with respect to the Reagan and Smyth cases : 
"In those cases, the only wrong or injury or trespass 
involved was the threatened commencement of suits to en- 
force the statute as to rates. . . . The threat to commence 
those suits under such circumstances was, therefore, neces- 
sarily held to be equivalent to any other threatened wrong 
or injury to the property of a plaintiff which had thereto- 
fore been held sufficient to authorize the suit against the 
officer." 

Is this a proper view of such suits, as equivalent to any 
other threatened act, part of the execution of an uncon- 
stitutional statute? Or is a suit to be regarded simply as 
a resort to judicial determination whether the statute is to 
be enforced? There were precedents — some to comfort, 
some to plague the court.^ 

The main reliance of Justice Peckham, in the opinion of 
the court, was upon Reagan v. Farmers' Loan and Trust 

1 189 U. S. 207. 

2 The point decided in Ex parte Young — whether suits in the 
name of the State by law officers having no other relation to the 
statutes in question might be enjoined — was raised in two earlier 
cases, but avoided by basing the decisions on other grounds. In 
Cotting V. Godard, 183 U. S. 79, the objection on this score was 
not raised by the attorney general at the proper stage of the case; 
and the court took this as an opportunity not to decide the case, 
"but to dismiss as to the attorney general, without prejudice to a 
new suit. In Gunter v. Atl. Coast Line R. R. Co., 200 U. S. 273, 
a bill to restrain suit by the attorney general to recover back taxes 
was sustained as ancillary to a previous action, involving the 
validity of the same taxes, to which the State had been a party. 



Ex Parte Young. 95 

Company^ and Smyth v. Ames.- It is true that in both 
those cases the attorney general was a member of the rail- 
road commission ; and that no special point was made as to 
the enjoining of suits in the general injunction against en- 
forcement of the rates. However, if such suits be regarded 
as part of the execution of the unconstitutional rates, 
Justice Peckham was clearly right in holding that it makes 
no difference whether the officer has a special relation to the 
statute, or whether his duties are simply in the regular 
exercise of his office. " The being specially charged with 
the duty to enforce the statute is sufficiently apparent when 
such duty exists under the general authority of some law, 
even though such authority is not to be found in the par- 
ticular act. It might exist by reason of the general duties 
of the officer to enforce it as a law of the State." Justice 
Harlan himself, in his dissenting opinion, abandoned the 
distinction in Fitts v. McGIiee,^ between being specially 
charged or not with the enforcement of a statute. In fact, 
as Justice Peckham pointed out, in Smyth v. Ames " There 
was no special provision in the statute as to rates, making 
it the duty of the attorney general to enforce it, but, under 
his general powers, he had authority to ask for a man- 
damus to enforce such or any other law." 

Justice Harlan now sought to explain away the Reagan 
and Smyth cases as suits against the States with their con- 
sent.* Justice Brewer, in the Reagan case, did call attention 
to the fact that the State law provided for actions against 
the commission in any court of competent jurisdiction in 
Travis County, and that " the United States circuit court 
might be considered as coming within that description." 
And the case has been referred to since as decided upon that 
ground.^ The real ground of the decision, however, was 

> IS4 U. S. 362. 

2 169 U. S. 466. 

3 172 U. S. 516. 

* This, of course, involves the view, which is opposed in Part I, 
p. 29, that consent of a State may confer jurisdiction on the federal 
courts in cases coming within the prohibition of the eleventh 
amendment. 

'D. & F. Mfg. Co. v. Los Angeles, 189 U. S. 207, 218; Barney 
V. N. Y., 193 U. S. 430. 



96 The Non-Suability of the State. 

clearly that the suit was not a suit against the State. 
Justice Harlan's explanation of Smyth v. Ames is very 
weak. It involves a direct conflict with the decision in 
Smith V. Reeves,^ in which he himself delivered the opinion, 
that, in giving its consent, a State may limit suits against 
itself to its own courts. 

The cases that gave trouble were Ex parte Ayers^ and 
Fitts V. McGhee.^ The Ayers case was as follows. It 
having been held, in Poindexter v. Greenhow, that, when a 
taxpayer had tendered coupons which the State had con- 
tracted to receive for taxes, any attempt to collect the tax 
thereafter was an unlawful trespass, a State statute was 
passed, providing for suit in the name of the State for the 
recovery of the taxes in such cases, and imposing onerous 
conditions on the proof of tender, which it was alleged 
were unconstitutional.* A bill was brought by holders of 
coupons against the attorney general and various common- 
wealth attorneys to restrain such suits. If the case had 
come up simply on appeal from the circuit court, it might 
have been decided on other grounds, and never have risen 
to vex the court. For the plaintiffs were not taxpayers 
who had tendered coupons, and were, therefore, probably 
not in a position to bring the suit.^ It would seem, also, 
that the remedy by defense at law was adequate, and that, 
therefore, there was no ground for equitable rehef. How- 
ever, these questions did not arise ; for the case came up on 
petition for habeas corpus, upon sentence for contempt for 
violation of the temporary restraining order of the circuit 
court. The court held that the suit below was in effect a 
suit against the State. 

Justice Peckham stated Ex parte Ayers thus : " A suit of 
such a nature was simply an attempt to make the State 
itself, through its officers, perform its alleged contract, by 

' 178 U. S. 436. 
' 123 U. S. 443- 
" 172 U. S. S16. 

* So held, later, in McGahey v. Va., 135 U. S. 662. _ 
"See Marye v. Parsons, decided in connection with Poindexter 
V. Greenhow. 



Ex Parte Young. 97 

directing those officers to do acts which constituted such 
performance. The State alone had any interest in the ques- 
tion, and a decree in favor of plaintiff would afifect the 
treasury of the State." And again: "But the injunction 
asked for . . . was to restrain the State officers from com- 
mencing suits under the act of May 11, 1887 (alleged to be 
unconstitutional), in the name of the State, and brought to 
recover taxes for its use, on the ground that, if such suits 
were commenced, they would be a breach of a contract with 
the State." This is all the explanation of Ex parte Ayers ; 
and it is manifestly no explanation at all. The suit did not 
attempt to compel the State officers to do anything. The fact 
that the alleged unconstitutional acts sought to be restrained 
would have been a breach of the contract of the State made 
no difference, if the commencement of suits under the 
circumstances was equivalent to a trespass like that in 
Poindexter v. Greenhow. The opinion in Ex parte Ayers 
went squarely on the ground that the mere bringing of an 
action in the name of the State could not be charged against 
the officers as an individual wrong: "It follows, therefore, 
in the present case, that the personal act of the petitioners 
sought to be restrained by the order of the circuit court, 
reduced to the mere bringing an action in the name of and 
for the State against taxpayers, who, although they may 
have tendered tax receivable coupons, are charged as de- 
linquent, cannot be alleged against them as an unconstitu- 
tional act in violation of any legal or contract rights of such 
taxpayers."^ 

Justice Peckham also said: "The injunction was de- 
clared illegal because the suit itself could not be entertained, 
as it was one against the State to enforce its alleged contract. 
It was said, however, that, if the court had power to entertain 
such a suit, it would have power to grant the restraining 
order preventing the commencement of suits. It was not 
stated that the suit or the injunction was necessarily confined 
to a case of threatened direct trespass upon or injury to prop- 

* For a fuller exposition of the views of Justice Matthews, see 
above, Chap. V. 



g8 The Non-Suability of the State. 

erty." This is sophistical. Certainly, if the suit could be 
entertained, the injunction could be granted. But whether 
the suit could be entertained, depended upon whether the suits 
in question might be enjoined. It is true, if the State were 
a party, other grounds for enjoining the suits might exist. 
Any equitable ground would suffice. For instance, if the 
State were about to bring suit upon a chose in action, to 
which an equitable defense existed, the suit might be en- 
joined if the State could be made a party, and the agents 
of the State incidentally included in the injunction. But, of 
course, this ground would not suffice, if the State could not 
be made a party, for an injunction against the agents. For 
such a separate right of action against the agents, other 
grounds must exist; the acts threatened must be violations 
of rights in rem. And the question in Ex parte Ayers was : 
could the threatened suits be regarded as equivalent to tres- 
passes like that in Poindexter v. Greenhow? It was 
answered in the negative. It may be said, however, that 
the decision was made under a general tendency to limit 
suits against public officers to cases " where the acts com- 
plained of, considered apart from the official authority 
alleged as justification, and as the personal acts of the indi- 
vidual defendants, constituted a violation of right for which 
the plaintiff was entitled to a remedy at law or in equity 
against the wrongdoer in his individual character " ; a ten- 
dency which has not prevailed.^ 

Even more directly in point was Fitts v. McGhee. A 
statute of Alabama, 1895, fixed the rates of toll that might 

^ See above, Chap. V. The decision, though not the opinion, in 
Ex parte Ayers may, perhaps, be explained on the ground that, 
the taxes themselves being perfectly valid, the State had the right 
to demand them as often as it pleased, subject to the right of the 
taxpayers to make tender of the coupons ; that the suits were only 
a form of demand; and that this lawful form of demand was not 
made unlawful in itself by the imposition of unconstitutional condi- 
tions on the proof of tender. (If the taxes were unconstitutional, 
it would seem that there was no right even to demand them.) 
Consequently, that there was no unlawful act threatened. This 
would not, of course, be strictly a question of jurisdiction. But 
relief from sentence for contempt has been extended beyond the 
lack of jurisdiction in the strict sense. 



Ex Parte Young. 99 

be charged for crossing a certain bridge, under a penalty 
of $20 for each violation, to be recovered by the persons 
overcharged. The receivers of the railroad company own- 
ing the bridge, alleging that the rates were so low as to be 
unconstitutional, brought suit to restrain the attorney gen- 
eral from instituting any proceedings, by mandamus or 
otherwise, to compel the observance and obedience of the 
act fixing the rates of toll, or for the forfeiture of the 
franchise of the railroad company in and to the bridge for 
failure to obey the act. Also, against a certain named indi- 
vidual and all persons whatsoever, to restrain from insti- 
tuting suits for penalties, and from procuring the institution 
of any suit by the State officers. Before final hearing, an 
amendment to the bill recited that numerous indictments 
against the agents of the company were being brought under 
a law of the State making it a misdemeanor to charge un- 
reasonable rates; and the injunction was extended to re- 
strain the State solicitor for the judicial district within 
which the bridge was located from prosecuting criminal pro- 
ceedings against anyone for violation of the alleged uncon- 
stitutional statute fixing rates. The supreme court, on 
appeal, held the suit to be in efifect against the State. 

Justice Peckham explained the case away on the ground 
that the act under which the indictments were brought " was 
not claimed to be unconstitutional, and the indictments 
found under it were not necessarily connected with the 
alleged unconstitutional act fixing the tolls," and that the 
penalties for disobeying the latter act, by demanding and 
receiving higher tolls, " were to be collected by the persons 
paying them," no officer of the State having " any official 
connection with the recovery of such penalties." This 
entirely overlooks the relation of the attorney general to the 
alleged unconstitutional act — the proceedings by mandamus 
or otherwise that might be instituted by him. Besides, 
there was no suggestion of such a distinction in the opinion 
in Fitts V. McGhee. The indictments under the act against 
unreasonable tolls seem to have been regrarded as used to 



lOO The Non-Suability of the State. 

enforce the act fixing the tolls.^ The decision was based 
squarely on Ex parte Ayers. True, it was said that 
" neither of the State officers named had any special rela- 
tion to the particular statute alleged to be unconstitutional." 
But this did not mean that the officers had no direct rela- 
tion to the statute; it meant that their relation was only 
in the ordinary exercise of their offices, and not, as in other 
cases which had to be distinguished, by virtue of any 
special connection.^ The ground of the decision is clearly 
shown by this quotation : " There is a wide difference be- 
tween a suit against individuals holding official position 
under a State, to prevent them, under the sanction of an 
unconstitutional statute, from committing by some positive 
act a wrong or trespass, and a suit against officers of a 
State, merely to test the constitutionality of a State statute, 
in the enforcement of which those officers will act only by 
formal judicial proceeding in the courts of the State."^ 

So far as precedents were concerned, then, there was, 
on the one hand, the principle announced in the Ayers and 
Fitts cases, a principle which had never been questioned. 
On the other hand, there was the logic of the decisions in 
the Reagan and Smyth cases. Clearly, the court, in Ex 
parte Young, was not compelled by precedent. In deciding 
as it did, it was no doubt influenced by the fact that the 
principle of Fitts v. McGhee was being abused by State 
rate legislation imposing such enormous penalties for viola- 
tion as practically to coerce submission without a test of 
the constitutionality of the rates. Evidently, the enforce- 
ment of rates by such proceedings would work just as seri- 
ous an injury to constitutional rights as any direct trespass 
to accomplish the same result. Necessity seemed to require 
the decision. Justice Harlan showed that there was no 



^The case was cited to this effect in D. & F. Mfg. Co. v. Los 
Angeles, 189 U. S. 207, 217. 

^As already stated, this distinction was shown to be groundless 
by Justice Peckham. 

* Justice Harlem, who had delivered the opinion of the unanimous 
court in Fitts v. McGhee, said of Justice Peckham's explanation: 
" The Fitts case is not overruled, but is, I fear, frittered away or 
put out of sight by unwarranted distinctions." 



Ex Parte Young. loi 

such necessity in the case at hand, at least. The bill in the 
suit below had been brought by stockholders of the railroad 
companies concerned, to enjoin the railroads from obedi- 
ence to the rates prescribed, as well as to enjoin the State 
officers from enforcement of the act. So that, at the time 
the attorney general committed his contempt, the railroad 
company was acting under order of the federal court, and 
was, therefore, protected by this defense against any action 
that might be brought in the State courts, as was held in 
Hunter v. Wcod.^ Such a situation would arise, however, 
only under the operation of the equity rule which enables 
stockholders, in certain circumstances, to enjoin the cor- 
poration from obeying an unconstitutional law to the injury 
of the corporation.^ 

Accepting the view that suits to enforce an unconstitu- 
tional statute may be equivalent to a trespass, there remain 
other objections. There is, in the first place, section 720 of 
the revised statutes,^ forbidding the granting of a writ by 
any court of the United States to stay proceedings in any 
court of a State, except in cases where such injunction may 
be authorized by any law relating to proceedings in bank- 
ruptcy. Strangely, this statute, though much relied upon 
in Gunter v. Atlantic Coast Line Railroad Company, was 
not discussed in either opinion in Ex parte Young. Yet it 
seems to ofifer an insuperable bar. Its prohibition extends, 
of course, not merely to writs addressed directly to State 
courts, but also to writs to enjoin parties from instituting 
proceedings in State courts. It is limited, to be true, by the 
doctrine of Dietzsch v. Huidekoper, that a federal court 
may enjoin such proceedings where necessary to the 
effective exercise of its own jurisdiction. Under this doc- 
trine, a party to a suit in a federal court may be enjoined 
from bringing in the State courts suits involving the same 
question between the same parties. In the Gunter case, for 
example, the State having been a party to the original suit, 

»209 U. S. 205. 

* State decisions contrary to Ex parte Young are R. R. Com. v. 
T. & A. R. R. Co., 24 Fla. 417; State v. So. Ry. Co., 145 N. C. 495. 
«U. S. Comp. Stat. 1901, p. 581. 



I02 The Non-Suability of the State. 

in which a certain tax was held unconstitutional, it was 
held that section 720 did not bar an ancillary suit to enjoin 
the agents of the State from suing in the name of the State 
for the same taxes. 

In Ex parte Young, Justice Peckham said : " The ques- 
tion that arises is whether there is a remedy that the parties 
interested may resort to, by going into a federal court of 
equity, in a case involving a violation of the federal con- 
stitution, and obtaining a judicial investigation of the prob- 
lem, and, pending its solution, obtain freedom from suits, 
civil or criminal, by a temporary injunction, and, if the 
question be finally decided favorably to the contention of 
the company, a permanent injunction restraining all such 
actions or proceedings." Now, if enjoining the suits in 
such a case could be thus regarded as incidental to the 
action against the officers, there would, of course, as in the 
Gunter case, be no need of holding such suits to be equiva- 
lent to a trespass. But it is utterly improper to regard 
them so in a case like Ex parte Young, where the only 
relation of the officers to the statute was, as law officers of 
the State, to bring formal suits in the name of the State. 
There was no right of action against the officers to test the 
constitutionality of the statute, as incidental to which suits 
by the officers with the same object might be enjoined. 
The only right of action against the officers was to restrain 
the suits as equivalent to a trespass ; and the only bearing of 
the question of constitutionality of the statute was with 
respect to whether the officers had lawful authority for 
their otherwise wrongful acts. The prohibition in section 
720 is, of course, purely statutory ; and whether it properly 
applied or not does not affect the main principle of the case. 

Another ground of objection, strongly urged by Justice 
Harlan, is that to shut out a State from appearing in its 
own courts, by enjoining all its officers, is contrary to our 
federal form of government. Justice Peckham admitted: 
"It is proper to add that the right to enjoin an individual, 
even though a State official, from commencing suits under 



Ex Parte Young. 103 

circumstances already stated, does not include the power to 
restrain a court from acting in any case brought before it, 
either of a civil or criminal nature, nor does it include power 
to prevent any investigation or action by a grand jury. 
The latter body is part of the machinery of a criminal 
court, and an injunction against a State court would be a 
violation of the whole scheme of our government. If an 
injunction against an individual is disobeyed, and he com- 
mences proceedings before a grand jury or in a court, such 
disobedience is personal only, and the court or jury can 
proceed without incurring any penalty on that account." 
Justice Harlan answered: "If an order of the federal court 
forbidding a State court or its grand jury from attempting 
to enforce a State enactment would be a violation of the 
whole scheme of our government, it is difficult to see why 
an order of that court, forbidding the chief law officer and 
all the district attorneys of a State to represent it in the 
courts, in a particular case, and, practically, in that way 
closing the doors of the State courts against the State, 
would not also be inconsistent with the whole scheme of our 
government, and, therefore, beyond the power of the court 
to make." It may be said, however, that, even if Justice 
Harlan's argument be fully accepted, limitations growing 
out of our federal form of government seem to yield before 
exigencies sufficiently strong.^ 

From the foregoing exposition, it is plain that Ex parte 
Young was a very difficult case. The court succeeded in 
agreeing, however, with only one dissent: and the decision, 
made upon the fullest consideration, may doubtless be ac- 
cepted as final. Its immediate efl'ect upon rate regulation 
will probably be good ; it will check the tendency back to the 
unsatisfactory method of regulation directly by the legisla- 
ture, in order to avoid, under the principle of Fitts v. 
McGhee, the control of the federal courts.^ In its full 

' For example, S. C. v. U. S., 199 U. S. 437. 

'Another State plan of confining the determination of the legality 
of rates, in the first instance, to the State courts, by making the 
fixing of the rates a judicial act, was frustrated in Prentis v. Atl. 
C. L. R. R. Co., 211 U. S. 210. 



I04 The Non-Suability of the State. 

scope, the decision is startling. Whether a new departure 
in principle or not, the case certainly marks a radical ex- 
pansion in the practical control of the federal courts over 
State activities. It enables a federal court to enjoin 
criminal prosecutions under any State law alleged to be 
unconstitutional, provided only equitable grounds exist. It 
has already led to a strong movement to regulate strictly 
the exercise of this power by the federal courts.^ 

1 Congressional Record, 6oth Congress, ist session, p. 133. Presi- 
dent's message, December 3, 1907. Meeting of attorneys-general 
of States, September and October, 1907. 



CHAPTER VII. 

Federal Question — When Involved in Suits Against 
State Officers. 

A right of action against public officers exists, as appears 
from the foregoing chapters, whenever they threaten acts 
that violate rights in rem. These acts, otherwise unlawful, 
are lawful if done under valid authority of the State. 
Whenever the validity of the authority set up depends upon 
the constitution of the United States, a federal question is 
involved. 

In Ex parte Young, Attorney General, now Governor, 
Hadley of Missouri, of counsel for petitioner, stated the 
following dilemma: " If the act sought to be enjoined is not 
the State's act, the fourteenth amendment is not involved. 
If the act sought to be enjoined is the State's act, then the 
eleventh amendment interposes to deny jurisdiction."^ 
Now, in the first place, it is not necessary, to avoid conflict 
with the eleventh amendment, to regard the act of the 
officer as not the act of the State. If the act is wrongful, 
an action lies against the officer, whether his act is the act 
of the State or not. Moreover, it is not necessary, to in- 
volve the fourteenth amendment, that the act of the officer 
under an unconstitutional statute be regarded as the act of 
the State. It is true the prohibitions of the fourteenth 
amendment apply only to State action. But, whether the 
acts of the officer be regarded as the acts of the State or 
not, the fourteenth amendment is involved whenever the 
State authority set up is alleged to be in violation of the 
amendment. If the act be regarded as not the act of the 
State if unconstitutional, then the question is whether it is 
prevented from being the act of the State by the fourteenth 
amendment. 

^ Quoted from an article by Hadley : " The Eleventh Amend- 
ment " : 66 Cent. Law Jour., 71, 75. 

105 



io6 The Non-Suability of the State. 

To involve a question under the fourteenth amendment, 
then, there must be a State authority set up, alleged to be in 
violation of the amendment. What constitutes a State 
authority in this sense? One view might be that State 
authority is involved whenever action is taken by virtue of 
official position under the State. On the other hand, it 
might be held that State authority is in question only when 
the action has valid authorization so far as State law is 
concerned. The latter view is not followed throughout, at 
any rate. For action of officers under a State statute will 
always be tested under the fourteenth amendment, even 
if the statute is alleged to violate also the State constitution. 
In other words, although prohibited by higher State 
authority, the statute is sufficiently State authority to invoke 
the test of the fourteenth amendment. 

This leads to a consideration of Barney v. City of New 
York.^ In that case, there was no diverse citizenship, so 
that jurisdiction depended entirely upon the existence of a 
federal question. A bill was brought in the United States 
circuit court to enjoin the city of New York, the board of 
rapid transit commissioners, and certain contractors from 
proceeding with the construction of a tunnel under Park 
Avenue, adjacent to the premises of plaintiff, "until the 
easements appurtenant thereto shall have been acquired ac- 
cording to law and due compensation made therefor"; it 
being alleged that the tunnel was being constructed nearer 
his premises than provided in the plan adopted in com- 
pliance with the requirements of the State law in case of 
such a construction. That is, the threatened act was 
alleged to be illegal under the State law, and at the same 
time to " deprive of property without due process of law," 
by taking easements without compensation.- The court 
upon its own motion dismissed the bill for want of juris- 
diction. The supreme court affirmed the decision, on the 
ground that the act, being illegal under State law, was not 

2 193 U. S. 430. 

* The fourteenth amendment applies, of course, to the action of 
local governments, as well as of other State agencies. 



Federal Question. 107 

State action, so that the fourteenth amendment did not 
apply. 

The opinion of the court, by Chief Justice Fuller, is far 
from convincing. The case mainly relied upon is Virginia 
V. Rives, ^ in which was denied the right to remove a 
criminal action to the federal court, under a statute pro- 
viding for such removal in case of " denial or inability to 
enforce in the judicial tribunals of a State, rights secured to 
a defendant by any law providing for the equal civil rights 
of all persons citizens of the United States," upon the 
allegation that the officer charged with the selection of 
jurors would discriminate against negroes in the selection. 
Now, the officer had no authority under the State law to 
make such a discrimination; and the supreme court simply 
held that, under these circumstances, there was not suffi- 
cient ground to presume that the petitioner could not en- 
force his rights in the judicial tribunals of the State — that 
to raise such a presumption, there must be a State statute, 
which, if enforced, would violate such rights. The court 
expressly said that the act of congress was not as broad as 
the fourteenth amendment. A like discrimination, under 
the same State law, was held, in Ex parte Virginia,- to be 
sufficiently State action to be punishable under the power 
to enforce the fourteenth amendment. Justice Strong 
said: "Whoever, by virtue of public position under a State 
government, deprives another of property, life, or liberty, 
without due process of law, or denies or takes away the 
equal protection of the laws, violates the constitutional 
inhibition ; and as he acts in the name and for the State, and 
is clothed with the State's power, his act is that of the 
State."^ 

The other cases cited by Chief Justice Fuller for the 

1 100 U. S. 313. 

' 100 U. S. 339. 

3 Chief Justice Fuller's explanation of Ex parte Virginia as " a 
case in which what was regarded as the final judgment of a State 
court was under consideration," is most astonishing; for it was 
expressly held in that case that it was not an attempt to punish 
State judicial action. 



io8 The Non-Suability of the State. 

"principle that it is for the State courts to remedy acts of 
State officers done without the authority of or contrary to 
State law — " Missouri v. Dockery^ and the Civil Rights 
Cases — ^ furnish no better support. The Civil Rights cases 
are not in point at all, no action of State officers being 
involved. And Missouri v. Dockery was decided expressly 
on the ground that the acts in question were within State 
competence without violation of any federal limitation; so 
that whether they were authorized by State law or not 
raised no federal question.^ 

The decision in Barney v. New York may be sustained 
only upon the view that, where a higher State authority 
prohibits, no State authority exists to be tested under the 
fourteenth amendment. But this is certainly contrary to 
the practice of testing a State statute under the fourteenth 
amendment, although the statute is also in violation of the 
State constitution. And it seems more reasonable to hold 
that, whenever action is taken " by virtue of public position 
under a State government," it is sufficient to raise the ques- 
tion whether such action is prohibited by the fourteenth 
amendment, although it may also be contrary to State law. 

The case of General Oil Company v. Crain* may best be 
considered here. A bill was brought in a Tennessee court to 
enjoin the State oil inspector from collecting inspection fees 
on oil brought to Memphis from Ohio, already sold for 
shipment into other States, but car-loads put into tanks in 
Memphis for subdivision for distribution; it being alleged 
that the oil was exempt from State control as interstate 

!• 191 U. S. 165. 

2 109 U. S. 3. 

8 The act of an officer in the exercise of his authority under a 
statute is, of course, just as much the act of the State as if 
specifically directed by statute ; for instance, the fixing of rates by 
a commission, as in Reagen v. Farmers L. & T. Co. See also 
Fargo V. Hart, 193 U. S. 490; Gen. Oil Co. v. Crain, 209 U. S. 211. 
The opinion in La. v. Texas, 176 U. S. i, seems contrary. In 
Arbuckle v. Blackburn, 191 U. S. 405, no federal question was in- 
volved, because the act of the officer was simply a finding of fact 
under a State law admitted to be valid. 

* 209 U. S. 211. 



Federal Question. 109 

commerce. The State court dismissed the bill for lack of 
jurisdiction, upon a construction of a State law of 1873, 
prohibiting suits against the State " or any officer acting by 
the authority of the State, with a view to reach the State, 
its treasury, funds, or property." In a previous case, the 
State court of Tennessee had sustained a suit against officers 
of the State acting under a statute alleged to be unconstitu- 
tional, on the ground that, when acting under an uncon- 
stitutional statute, officers are not acting for the State. In 
the present case, however, the inspection law was not 
alleged to be void on its face, but only on the ground that 
the oil upon which defendant was about to impose in- 
spection fees was in law affected with interstate commerce. 
To enter into the inquiry involved in this contention, the 
court said, it would be necessary first to determine whether 
the oil in the tanks was in fact and in law a part of inter- 
state commerce; and this the court had no jurisdiction to 
do, because of the law of 1873. 

Now, the State court was clearly wrong; for there was 
nothing more to prevent an inquiry whether the commerce 
clause applied to the oil in question upon action of a 
State officer under a State statute, than upon a statute itself. 
But the question was, upon writ of error to the supreme 
court, whether any federal question was involved, the rul- 
ing of the State court having been entirely upon the ground 
of lack of jurisdiction under the State law. The court held 
there was, because the State court had " refused to consider 
that which might bring the oil under the protection of the 
constitution of the United States." "It being, then, the 
right of a party to be protected against a law which violates 
a constitutional right, whether by its terms or the manner of 
its enforcement, it is manifest that a decision which denies 
such protection gives effect to the law, and the decision is 
reviewable by this court. R. R. Co. v. Alsbrook."^ 

This is no argument at all, for, manifestly, any dismissal 
for lack of jurisdiction of a suit for violation of a con- 

* 146 U. S. 279. 



no The Non-Suability of the State. 

stitutional right by a State statute, even if the suit were 
directly against the State, would give effect to the statute. 
Railroad Company v. Alsbrook is not in point. In that case 
the State court ruled upon the federal question. Justice 
McKenna reviewed the cases in which it had been held that 
a decision by the State court upon its own jurisdiction is 
final, and then dismissed them with the remark that " in 
none of these cases was the same question presented as here," 
without any real attempt to distinguish them. The only 
proper ground for the decision would seem to be that a 
remedy of right existed against the officer for violation of a 
constitutional right, and that a State statute or decision 
denying this remedy, even upon the ground of lack of juris- 
diction, was itself unconstitutional.^ 

1 The ruling of the State court was afifirmed on the ground that 
the inspection tax in question was not unconstitutional. Justice 
Harlan concurred in. the judgment on the ground that the decision 
of the State court as to its own jurisdiction was final. Justice 
Holmes concurred specially. 



CHAPTER VIII. 

The Relation of the State to Suits Against its 
Officers. 

In suits against public officers directly affecting the state- 
for instance, where the defense in an action of ejectment 
against officers depends upon title of the state -the state 
may, without becoming a party, by formal suggestion by its 
law officer, bring its rights before the court.^ This special 
privilege extends even to participation m argument 
Whether, in such a case, in which the state has not sub- 
mitted itself to the jurisdiction of the court, it may pros- 
ecute in its own name a writ of error from a rulmg, has 
not been squarely decided by the supreme court ;^ although 
the opinion in South Carolina v. Wesley inclines strongly 
against the right. 

The basic problem remains to be considered: i^s a suit 
against public officers ever a suit against the state?* ^^ 

In Osborn v. Bank, Chief Justice Marshall said: It 
may, we think, be laid down as a rule which admits of no 
exception, that, in all cases where jurisdiction depends on 
the party, it is the party named in the record.^ Con- 
sequently, the eleventh amendment, which restrains the 
jurisdiction granted by the constitution over suits agamst 
States is, of necessity, hmited to those suits in which a 
State is a party on the record. . . . The State not being a 
party on the record, and the court having jurisdiction over 

^U. S. V. Lee, io6 U. S. 196; Stanley v. Schwalby, 162 U. S. 255; 
Belknap V. Schi'ld, 161 U. S. 10. 

»R wa" noWLl:7y tfdecide the point in U. S. v. Lee, because 
the same questions were raised in the bUl of exceptions of the 
individual defendants. And in S. C. v Wesley, I55 U. S. 542, the 
exceptions below had not been properly taken "°r ,b!-o"ght up. 

* Apart of course, from where the state has provided therefor as 
a form of action against itself. See Part I, p. 40. 



Ill 



112 The Non-Suability of the State. 

those who are parties on the record, the true question is, 
not one of jurisdiction, but whether, in the exercise of its 
jurisdiction, the court ought to make a decree against the 
defendants — whether they are to be considered as having a 
real interest, or as being only nominal parties." This was 
held settled doctrine as late as Davis v. Gray.^ 

Even in Davis v. Gray, however, two justices, dissenting, 
held the suit against the officers to be in effect against the 
State. In Carr v. United States,- Justice Bradley showed 
strongly his opinion that suits against pubhc officers, like 
that in United States v. Lee, are suits against the United 
States. And, in United States v. Lee, the four dissenting 
justices held the suit to be in effect against the United 
States. In Louisiana v. Jumel, the suit against officers was 
held to be against the State. In Cunningham v. Macon and 
Brunswick Railroad Company, the suit was dismissed be- 
cause the State was an indispensable party. So that, by the 
time of Poindexter v. Greenhow,^ the court was in a posi- 
tion to say, as a matter of course : " It is also true that the 
question whether a suit is within the prohibition of the 
eleventh amendment is not always determined by refer- 
ence to the nominal parties on the record." Since then, it 

* Justice Harlan, dissenting, in Ex parte Ayers, stood squarely 
upon it. 

Justice Matthews said that the language of Chief Justice Marshall 
" conveys the intimation that, where the defendants, who are sued 
as officers of the State, have not a real, but merely a nominal 
interest in the controversy, the State appearing to be the real de- 
fendant, and therefore an indispensable party, if the jurisdiction 
does not fail for want of power over the parties, it does fail, as to 
the norninal defendants, for want of a suitable subject-matter." 
But Chief Justice Marshall expressly said that "the question is 
not one of jurisdiction." 

Justice Matthews sought to support his interpretation by the 
opinion of Chief Justice Marshall in Ga. v. Madrazo. i Pet. no. 
But in that case the chief justice merely considered that the suit 
against the governor as governor might suffice as a suit against the 
State; as it seems to have been intended, on the theory that the 
eleventh amendment does not apply to suits in admiralty. Since 
the suit was brought in this aspect, it could hardly be regarded as 
against the governor personally. If it could, however, the reason 
for dismissal was stated by Chief Justice Marshall to be that no 
case was made out against him. 

298 U. s. 433. 
» 114 U. S. 270. 



Relation of State to Suits Against Officers. 113 

has been " the settled doctrine of the court that the question 
whether a suit is within the prohibition of the eleventh 
amendment is not always determined by reference to the 
nominal parties on the record, as the court will look behind 
and through the nominal parties on the record to ascertain 
who are the real parties to the suit."^ 

Two cases mainly impelled the court to this doctrine that 
the court will look behind the parties to the record — Cun- 
ningham V. Macon and Brunswick Railroad Company- and 
New Hampshire v. Louisiana.^ The Cunningham case was 
a suit to foreclose a mortgage upon a railroad, to which 
the State held the legal title under a deed of trust. It was 
held that the State was an indispensable party to the suit, 
and, therefore, that the suit could not be maintained. In- 
dispensable parties are " persons who not only have an 
interest in the controversy, but an interest of such a nature 
that a final decree cannot be made without affecting that 
interest or leaving the controversy in such a condition that 
its final disposition may be wholly inconsistent with equity 
and good conscience."* In other words, a court will not 
exercise jurisdiction in a case where it cannot do substantial 
justice without the presence of other parties — that is, where 
any judgment it might render between the parties to the 
record would be subject in such manner to the rights of 
persons not parties that the judgment would not be com- 
plete. The relation of indispensable party can exist, then, 
only where the party to the record and the indispensable 
party both have an interest in the same subject-matter of 
the suit, so related that one cannot be disposed of properly 
without the other. Now, manifestly, there is no such rela- 
tion between the state and its officers. They have no per- 
sonal interest in the subject-matter of suits against them as 
officers; the suits are never based on any such interest. 
Hence the doctrine of indispensable party has no place. 

^Justice Lamar, in Pennoyer v. McConnaughy. 
^ 109 U. S. 446. 
" 108 U. S. 76. 
* See Part I, p. 39. 



114 ^^^ Non-Suability of the State. 

In New Hampshire v. Louisiana, suit was brought by the 
State of New Hampshire on bonds of Louisiana assigned 
to it for collection by its citizens, who retained the bene- 
ficial interest. The court held that the real parties to the 
suit were the citizens of New Hampshire, and therefore 
dismissed the suit as against a State by citizens of another 
State. This is the case always mainly relied upon for the 
doctrine that the court will look behind the nominal parties 
to the real parties in interest. The point involved was, 
however, entirely different from that in a suit against public 
officers. In New Hampshire v. Louisiana, the State repre- 
sented its citizens, so that they might be said to be not only 
the real parties in interest, but the real parties to the suit. 
In a suit against public officers, on the other hand, there is 
no pretence that the officers represent the state in the suit; 
so that it cannot be said that the state is a real party to the 
suit. The doctrine of nominal party and real party, there- 
fore, likewise has no place. 

What may be true is that the only real ground of action 
in the case is against the state. But the fact that there is 
no real ground of action against the officers, and that there 
is a real ground of action against the state, does not make 
a suit against the officers a suit against the state. Chief 
Justice Marshall was clearly right in holding that the ques- 
tion is not whether the suit is against the state, but whether 
there is a real ground of action against the officers. This 
is conclusively proved by comparing the two cases of United 
States V. Lee and Chandler v. Dix. The interest of the 
state in the subject-matter of the suit was precisely similar 
in the two cases; the judgment against the officers in neither 
case, of course, would bind the state: yet in the one case 
the suit was upheld, because there was a real ground of 
action against the officers themselves, and in the other dis- 
missed, because there was no such ground of action. It may 
have been observed that, throughout this study, the question 
of whether suits against public officers may be maintained 
has been determined, not upon the interest of the state, but 



Relation of State to Suits Against Officers. 1 1 5 

upon the question whether there is a real ground of action 
against the officers. 

As a mater of fact, ahhough the doctrine that the court 
will look behind the record to determine whether the state 
is the real party has been constantly announced, the cases 
rather harmonize with the other view. Generally, of 
course, it makes no practical difference whether the decision 
is put upon the ground that the suit is against the state, or 
that there is no ground of action against the officers. But 
sometimes it is material whether the question is one of juris- 
diction. If the question is whether the suit is against the 
state, then, clearly, it is one of jurisdiction. In this view, 
if the case upon the record may be a suit against the state, 
then it is the duty of the court, even upon its own motion, 
to inquire into the question of jurisdiction.^ Yet the court 
certainly has not taken this attitude. In Smyth v. Ames, 
Justice Harlan, delivering the opinion of the court, said of 
the objection that the suit was against the State: "This 
point is, perhaps, covered by the general assignments of 
error, but it was not discussed at the bar by the representa- 
tives of the State board. It would, therefore, be sufficient 
to say that these are cases of which, so far as the plaintiffs 
are concerned, the circuit court has jurisdiction," on the 
grounds both of diverse citizenship and of a federal ques- 
tion. And in Illinois Central R. R. Co. v. Adams,^ it was 
squarely held that the question was not one of jurisdiction, 
and that it was error in the court below to decide it upon a 
motion to dismiss for want of jurisdiction,^ 

' Postal Tel. Co. v. Ala., 155 U. S. 482 ; Minn. v. Hitchcock, 185 
U. S. 372. 

The only case in which this has been done, so far as I know, in 
a suit against public officers, is Lowry v. Thompson, 25 S. C. 416. 

" 180 U. S. 28. 

' Cotting V. Godard, 183 U. S. 79, and Prout v. Starr, 188 U. S. 
537, bear out the same view. 

In Minn. v. Hitchcock, in a suit by a State against the secretary 
of the interior, the court did inquire into the question of jurisdic- 
tion upon its own motion. But there it was held that the suit was 
a form of action against itself provided by the United States; and 
it was necessary to inquire whether the court had jurisdiction of 
such a case. 



Ii6 The Non-Suability of the State. 

On the other hand, are the cases in which a petition for 
habeas corpus has been entertained, upon a sentence for 
contempt for violation of an injunction against public 
officers.^ In Ex parte Ayers, the petitioner was released on 
the ground that the court below had no jurisdiction, be- 
cause the suit was against the State. And Justice Harlan 
dissented on the ground that the question of jurisdiction 
was the only one involved, and that was determined by the 
parties to the record. None of the other questions involved 
in the main suit, he said, was to be considered, not even 
"whether an officer ought to be enjoined from merely 
bringing a suit in behalf of the pubHc, the suit itself not 
necessarily, or before judgment therein, involving an in- 
vasion of the property rights of the defendant therein." 
But the courts have not generally limited the inquiry in such 
cases to the question of jurisdiction in its strict sense. And 
where the objection to the suit below is not to the merits of 
the ground of action as made out, but that no real ground 
of action is made out against the officers, it would seem 
sufficient to justify a release, although not strictly a ques- 
tion of jurisdiction. In Ex parte Young, although the 
question was stated to be whether the suit below was in 
violation of the eleventh amendment, the actual basis of 
discussion through the whole opinion was whether there 
was a real ground of action against the attorney general. 
The inquiry was even made, as vital to the case, whether the 
attorney general had any actual duties in the enforcement 
of the statute. Surely this was not a question of jurisdic- 
tion, and could not affect the question whether the suit was 
against the State. 

No court of justice, certainly, will suffer an attempt to 
enforce a right of action against one person in a suit against 
another. For instance, in a suit for the destruction of 
property used in infringement of a patent, if it appears that 
the party sued has no interest, but that the property belongs 
to another, the court certainly will not proceed, even though 

1 Ex parte Ayers and Ex parte Young. 



Relation of State to Suits Against Officers. 1 17 

the party sued make no objection, because to do so would 
be contrary to the first principles of justice.^ Whether this 
be regarded as a question of jurisdiction, however, is, after 
all, comparatively unimportant here. What is essential is 
that suits against public officers be considered from the 
right point of view. Whatever error appears in the cases 
has resulted from taking the interest of the state as a cri- 
terion.2 The proper inquiry in every case should be not 
what is the interest of the state, but whether there is a real 
ground of action against the officers.^ 

This basis of determination, it is true, is purely legal. In 
fact, though not in legal theory, the state is bound by deci- 
sions against its officers such as in United States v. Lee 
and in Ex parte Young. Practically, the rights of the 
state are determined in such cases. The doctrine of im- 
munity of the state from suit might have been given a 
liberal construction. The eleventh amendment might 
have been held to exclude any suit that actually directly 
binds the State. But this construction was conclusively 
rejected in Osborn v. Bank. If it had been adopted, con- 
stitutional limitations would have been dead letters. Given 
Osborn v. Bank, the only logical principle of construction 
is to follow consistently legal theory, according to which 
public officers may be sued whenever there is a separate 
ground of action against them. 

^ This, as I understand it, is different from the doctrine of in- 
dispensable party. That doctrine applies, not where an attempt 
is made to determine the rights of persons not parties, but where 
no satisfactory or effective judgment can be rendered between the 
parties, if those rights remain undetermined. 

^As in Louisiana v. Jumel (see above, p. 6g) ; and especially in 
Belknap v. Schild (see above, p. 50). 

* Where a real ground of action exists, a suit against public 
officers as such is never of such a nature that an effective remedy 
cannot be given between the parties to the record without other 
parties. 



VITA. 

Born in Baltimore, January 26, 1886. Passed through 
public schools, including Baltimore City College. A.B., 
Johns Hopkins University, 1907. LL.B., University of 
Maryland, 1909. Member of the bar of Maryland. Fel- 
low in political science, Johns Hopkins University, 1909- 
1910; Ph.D., 1910. 



118 



LEJa'i2 



THE DOCTRINE OF NON-SUABILITY OF 
THE STATE IN THE UNITED STATES 



BY 

KARL SINGEWALD 



A DISSERTATION 

Submitted to the Board of » University Studies of The Johns 

Hopkins University in conformity with the requirements 

for the degree of Doctor of Philosophy 

1910 



8ALTIMORE 

1910 



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